Terms and Conditions of Sale 2018
“The Company” means MIA Sports Technology Limited. ‘Contract’ means any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these terms and conditions.
“The Customer” means the purchaser of the Goods from the Company.
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4.
“Goods” means any products supplied by the Company to the Customer.
2.1 All other terms and conditions submitted or referred to by the Customer orally or upon any documentation are expressly excluded unless specifically accepted in writing by a director of the Company.
2.2 These terms and conditions shall supersede all prior representations, agreements and undertakings.
2.3 The giving of any delivery instructions or acceptance of or payment for Goods or any confirmation written or verbal by the Customer shall be deemed to be an unqualified acceptance of these Terms and Conditions.
2.4 Any quotation or estimate given by the Company is an invitation to the Customer to make an offer only and no order of the Customer placed with the Company in the pursuance of a quotation or estimate or otherwise shall be binding on the Company unless and until it is accepted in writing by the Company, at which point the Contract comes into effect.
2.5 The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a director of the Company in writing. In entering into the Contract, the Customer acknowledges that it does not rely on and waives any claim for breach of any such representations that are not so confirmed. Nothing in these Terms and Conditions will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.6 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.7 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract. Any typographical, clerical error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.8 The Company reserves the right to withdraw or make alterations to the Goods without notice including Goods already on order. The Company shall notify the Customer of any withdrawal or alterations to Goods and the Customer shall be entitled to cancel its order for such Goods within 5 working days of receipt of such notice.
2.9 The Customer must ensure that the terms of its order (including quantity, quality and delivery details) are complete and accurate, and that orders sent in confirmation of telephone instructions are clearly marked as such.
3.1 Unless previously agreed in writing, the price to be charged for the Goods will be the Company’s list price prevailing at the time of dispatch less any rate of discount which the Customer is offered. The Company will be entitled to alter the list price on giving notice to the Customer and will use reasonable endeavours to give one months notice of such alterations.
3.2 Prices of Goods are stated exclusive of VAT, which will be charged in addition at the rate applicable at the appropriate tax point.
4.1 Delivery of the Goods shall take place at the Delivery Point notified to the Company by the Customer when the order for the Goods is placed.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these terms and conditions, the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 30 days.
4.4 If for any reason the Customer will not accept delivery of any of the Goods when they are ready for delivery at the Delivery Point, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1 Risk in the Goods will pass to the Customer (including loss or damage caused by the Company’s negligence);4.4.2 The Goods will be deemed to have been delivered; and
4.4.3 The Company may store the Goods until delivery whereupon the Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 The Customer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.6 The Company reserves the right to deliver the Goods by separate instalments and each delivery shall be treated as a separate Contract. Without prejudice to any of the Company’s rights under these terms and conditions or otherwise, the failure or refusal of the Customer to take delivery or to pay for any one or more of the said instalments of the Goods on the due dates for payment shall entitle the Company at its sole discretion without notice to suspend further delivery of the Goods pending payment by the Customer.
4.7 Delivery costs will be charged on all orders unless otherwise agreed.
5.1 The Goods are at the risk of the Customer from the time of delivery.
5.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Customer on any account.
5.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
5.3.1 Hold the Goods on a fiduciary basis as the Company’s Bailee;
5.3.2 Store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
5.3.3 Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 Maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company; and
5.3.5 Hold the proceeds of the insurance referred to in condition 5.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
5.4 The Customer may resell the Goods before ownership has passed to it solely on condition that any sale shall be effected in the ordinary course of the Customer’s business.
5.5 The Customer’s right to possession of the Goods shall terminate immediately and the Company shall be entitled to cancel any order without liability to the Customer if:
5.5.1 the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
5.5.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
5.5.3 The Customer ceases, or threatens to cease, to carry on business.
5.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
5.7 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
Once an order for the Goods has been accepted by the Company the Customer shall have no right of cancellation, except in the Company’s sole and absolute discretion and subject to payment by the Customer of an administration charge amounting to 10% of the value of the Goods cancelled.
Subject to condition 9, Goods delivered to the Customer which are in accordance with the Contract will not be accepted for return, except in the Company’s sole and absolute discretion and subject to payment by the Customer of an administration charge amounting to 10% of the value of the Goods returned.
8.1 Unless otherwise agreed by the Company in writing, payment for the Goods is due in full prior to the date of delivery and installation
8.2 Where goods are delivered by instalments, the Customer shall be obliged to pay for each invoiced instalment in accordance with condition 4.6 above.
8.3 The time stipulated for payment shall be of the essence of the Contract and failure to pay within the specified period shall entitle the Company to suspend further performance by the Company pending payment in full and/or wholly or partially to cancel the Contract or any other contract between the Company and the Customer without prejudice to any other remedy available to the Company.
8.4 Unless otherwise agreed in writing by a director of the Company the Customer shall not be entitled to set off against any monies due to the Company under the Contract, any amount claimed by or due to the Customer from the Company whether pursuant to the Contract or any other account whatsoever.
8.5 The Company may charge the Customer interest (both before and after judgement) on any amount unpaid from the due date for payment at the rate of 3% per annum above HSBC Bank base rate from time to time until payment in full is made whether before or after any judgment (a part of a month being treated as a full month for the purpose of calculating interest). The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.6 Any bank charges accrued by the Company resulting from insufficient funds received from the Customer will be met in full by the Customer.
9.1 Subject to the other provisions of these conditions the Company warrants that upon delivery and for a period of 12 months from the date of delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 as amended.
9.2 The Company shall not be liable for a breach of the warranty in condition 9.1unless:
9.2.1the Customer gives written notice of the breach to the Company, and (if the breach relates to a defect in the Goods as a result of damage in transit) to the carrier, within 3 working days of the time when the Buyer discovers or ought to have discovered the breach; and
9.2.2 The Company is given a reasonable opportunity after receiving the notice of examining such Goods.
9.3 The Company shall not be liable for a breach of the warranty in condition 9.1 if the breach arises from willful damage, negligence, abnormal working conditions, failure to follow the Company’s oral or written instructions as to the storage, use or maintenance of the Goods, misuse or alteration of the Goods or repair of the Goods carried out by any person other than the Company.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods do not conform with the warranty in condition 9.1the Company shall at its option repair such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.
9.5 If the Company complies with condition 9.4 it shall have no further liability for breach of the warranty in condition 9.1 in respect of such Goods.
10. Limitation of Liability
10.1 Subject to condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
10.1.1 Any breach of these conditions; and
10.1.2 Any representation, statement or tortious act or omission including negligence arising under or in connection with he Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
10.4 Subject to conditions 10.2 and 10.3:
10.4.1 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
10.4.2 The Company shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the company. The Company may assign the Contract or any part of it to any person, firm or company.
12. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protects, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 30 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.4 The parties do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
14.1All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
14.1.1 (in case of communications to the Company) to its head office or such changed address as shall be notified to the Customer by the Company; or
14.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
14.2 Communications shall be deemed to have been received:
14.2.1 If sent by pre-paid first class post, 2 working days after posting (exclusive of the day of posting);
14.2.2 If delivered by hand, on the day of delivery as long as delivery occurs on a normal working day during normal working hours;
14.2.3 If sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.3 Communications addressed to the Company shall be marked for the attention a Company Director