Microwave Solutions Ltd.

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Terms of Sale



GENERAL TERMS AND CONDITIONS OF SALE-MICROWAVE SOLUTIONS LIMITED (MSL) 

In these conditions the "Company" means MSL and any subsidiary of the Company by which the goods are sold, the "Buyer" means the company, firm or individual to whom the company's quotation or acknowledgment is addressed and "goods" mean the 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 or not identical or similar and any instalment of the goods or any parts for them as aforesaid. 


1. GENERAL 

a) The Company's quotations are not binding on the Company and a contract (the "Contract") will only come into being upon acceptance by the Company of the Buyer's order and the following conditions shall be deemed to be incorporated therein. 

b) The Contract will be subject to these conditions. All terms and conditions appearing or referred to in the Buyer's order or otherwise stipulated by the Buyer shall have no effect. Any variation of the Contract must be confirmed in writing by the Company. 

c) Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery. 

d) Quotations given by the Company shall remain open for acceptance for a period of 30 days from the date of the quotation, unless in the quotation some other period is specified or accepted and unless the quotation is withdrawn by the Company. 

e) These conditions apply to services provided by the Company in the same way as they apply to goods supplied by the Company. 

 

2. PRICES 

a) Any price stated in the Contract is based on the cost to the Company of raw materials, fuel and power, transport and labour and all other costs at the date of acceptance of the order or quotation (whichever is earlier). If, at the date of despatch of the goods from the Company's works, or if at the date of carrying out the work, in either case 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. 

b) Where the price for the goods or services 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. 

c) There shall be added to the price for the goods or services any Value Added Tax and any 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 the Buyer). 

d) 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 Buyer's account and shall not affect the provisions in this contract as to the passing of risk. 

e) Quotations in a currency other than sterling are based on the rate of exchange at the time of quoting and unless otherwise stated the price may be subject to revision up or down if any different rate of exchange is ruling at the date of invoice. 

 

3. CANCELLATION AND RESCHEDULING 

a) Once a Contract is in place the Buyer may not cancel any order or part of an order. The Company may, at its discretion and in writing, allow an order to be cancelled subject to the Company recovering from the Buyer the costs already incurred in preparing to supply the order. 

b) In the event of cancellation of part of an order only, the Company may invoice the Buyer any difference in selling price per unit applicable to the quantity actually despatched compared to the quantity ordered. 

c) Notwithstanding paragraph 3(a), the Company is unable to accept cancellations for standard products or services that are requested less than 60 days from the acknowledged date of despatch, or in the case of custom products 120 days. 

d) Standard products and services are those offered on an open basis to any qualified Buyer. Custom products are those supplied exclusively to a specific Buyer to satisfy a unique requirement specified by that Buyer. 

e) The Company will accept rescheduling of a Contract, subject to the following limitations: 

(i) In the event a Buyer requests an earlier despatch date, the Company will endeavour to meet the earlier date on a best-effort basis, subject to the availability of the product ordered. 

(ii) In the event a Buyer requests a delayed despatch date more than 45 days from the scheduled despatch date, the Company will accept the delay so long as the complete order is despatched within 12months of the original Contract date. 

(iii) The Company is unable to agree to a delayed despatch date if requested less than 45 days from the scheduled despatch date. 


3. CANCELLATION AND RESCHEDULING 

a) Once a Contract is in place the Buyer may not cancel any order or part of an order. The Company may, at its discretion and in writing, allow an order to be cancelled subject to the Company recovering from the Buyer the costs already incurred in preparing to supply the order. 

b) In the event of cancellation of part of an order only, the Company may invoice the Buyer any difference in selling price per unit applicable to the quantity actually despatched compared to the quantity ordered. 

c) Notwithstanding paragraph 3(a), the Company is unable to accept cancellations for standard products or services that are requested less than 60 days from the acknowledged date of despatch, or in the case of custom products 120 days. 

d) Standard products and services are those offered on an open basis to any qualified Buyer. Custom products are those supplied exclusively to a specific Buyer to satisfy a unique requirement specified by that Buyer. 

e) The Company will accept rescheduling of a Contract, subject to the following limitations: 

(i) In the event a Buyer requests an earlier despatch date, the Company will endeavour to meet the earlier date on a best-effort basis, subject to the availability of the product ordered. 

(ii) In the event a Buyer requests a delayed despatch date more than 45 days from the scheduled despatch date, the Company will accept the delay so long as the complete order is despatched within 12 months of the original Contract date. 

(iii) The Company is unable to agree to a delayed despatch date if requested less than 45 days from the scheduled despatch date. 


4. TERMS OF PAYMENT 

In the case of approved accounts unless expressly agreed in writing payment shall be made in sterling without any deduction or set off or deferment on account of any disputes or cross claims whatsoever within 30 days following the date of the invoice for the goods. Where full payment is not received by the due date interest shall accrue on the sum outstanding at the rate of 3 per cent per month calculated on a daily basis but without prejudice to the Company’s rights to receive payment on the due date. In all other cases payment shall be in cash with the order or C.O.D. basis as agreed between the Company and the Buyer. Time for payment shall be of the essence and in the event of delay or default in any payment of more than 7 days or where genuine doubts arise as to the Buyer's financial position the Company shall be entitled to suspend deliveries and work both on the same order and on any other order from the Buyer and/or treat the Contract as repudiated and/or resell any of the goods in its possession and be indemnified by the Buyer for any loss thereby incurred, without prejudice to any other right the Company may have. Where goods are to be delivered outside the United Kingdom, payment shall be made on such terms as shall be agreed between the Company and the Buyer. 


5. TITLE TO GOODS 

a) Legal and beneficial ownership of 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 Buyer to the Company on any account. 

b) Until title in the goods passes to the Buyer under paragraph (a) above the Buyer shall: 

(i) be bailee of the goods; 

(ii) keep the goods separately and readily identifiable as the property of the Company; 

c) At any time prior to title in the goods passing to the Buyer (whether or not any payment to the Company is then overdue or the Buyer is otherwise in breach of any obligations to the Company) the Company may without prejudice to any other of its rights: 

(i) retake possession of all or any part of the goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises 

(ii) Require delivery up to it of all or any part of the goods 

(iii) Terminate the Buyer's authority to resell or use the goods forthwith by written notice to the Buyer which authority shall automatically terminate (without notice) upon any insolvency of the Buyer or it going into liquidation (as defined in the Insolvency Act 1986) or it having a Receiver or Administrative Receiver appointed or calling a meeting of its creditors or any execution or distress being levied on goods in its possession. 

d) The Company may at any time appropriate sums received from the Buyer as it thinks fit notwithstanding any purported appropriation of the Buyer. 

e) Each paragraph and sub-paragraph of this clause is separate, severable and distinct. 

 

6. WARRANTY: LIMIT OF RESPONSIBILITY 

The Company warrants in the terms of the warranty statement made by the Company in relation to the type of goods supplied which statement shall be deemed to be incorporated in these conditions, a copy of which will be provided to the Buyer on request. In respect of services, if the Company accepts within the warranty period applicable to such services that it has failed to execute the services in accordance with the express terms of the Contract the Company may at its option perform again such of the services as have not been carried out in accordance with the express terms of the Contract or repay the Buyer the charge for such of the services as have not been so performed (provided such charge shall have been paid to the Company by the Buyer). The Buyer's remedies in respect of any claim under the foregoing express warranty or any condition or warranty implied by law or any other claim in respect of the goods or services or any workmanship in relation thereto (whether or not involving negligence on the part of the Company) shall in the case of sale of goods be limited to repair or replacement, as provided in the warranty statement and, in respect of services to re-performance or refund as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the relevant warranty period and 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. A claim in respect of any defect or failure to comply with the specification or in respect of any delivery or instalment of any order or any part thereof shall not entitle the Buyer to cancel or refuse delivery of or payment for any other order, delivery or instalment or any part of the same order, delivery or instalment. 


7. DELIVERY AND COMPLETION DATES 

a) The delivery dates or the dates for carrying out the services 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 an Act of God, fire, inclement or exceptional weather conditions, industrial action (whether at the Company's premises or elsewhere), hostilities, shortage 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 or of an unexpected or exceptional nature. 

b) No delay shall entitle the Buyer to reject any delivery or performance or any further instalment or part of the order or any other order from the Buyer or to repudiate the Contract or the order. 

 

8. DAMAGE, SHORTAGE OR LOSS IN TRANSIT 

a) Unless the Contract otherwise stipulates, the risk in the goods passes to the Buyer when the goods are despatched from the Company's works and the Company accepts no responsibility for any damage or loss in transit. Claims for damage or loss in transit should be made on the carrier and any conditions imposed by the carrier in relation to claims for damage or loss in transit should be complied with. 

b) Where the Contract provides for delivery elsewhere than at the Company's works, risk will pass at the point specified in the Contract and the Company will entertain a claim by the Buyer in respect of loss or damage in transit only: 

(i) if the Buyer gives written notice to the Company within 21 days of non-delivery or within 3 days of the delivery of the goods in the case of any short delivery, over delivery or any defects reasonably discoverable on careful examination. In the absence of receipt of such notice the Company shall be discharged from all liability in respect of such defects or short or over delivery; and  

(ii) If the Buyer neglects to serve notice under subparagraph (i) above of any over delivery then the Company may at its option either repossess the excess goods or invoice them to be paid forthwith by the Buyer for the excess goods at the price ruling at the date of delivery. 

(iii) Where the goods are transported by an independent freight carrier, complies in all respects with the freight carrier's conditions of carriage for notifying claims for loss or damage in transit. 

 

9. DELAYED ACCEPTANCE 

If for any reason the Buyer 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 at the Buyer's risk and the Buyer shall be liable to the Company for the reasonable costs (including insurance) of such storage. This provision is without prejudice to any other right which the Company may have in respect of the Buyer's failure to take delivery of the goods or pay for them in accordance with the Contract. 

10. TERMINATION 

If the Buyer enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a Company) it shall pass a resolution or the Court shall make an Order that the Buyer shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a Receiver (including an Administrative Receiver) shall be appointed of any of the assets or undertaking of the Buyer or if circumstances shall arise which entitle the Court or a creditor to appoint a Receiver (including an Administrative Receiver) or a Manager or which entitle the Court to make a winding up Order or if the Buyer takes or suffers any similar action in consequence of debt or if the financial responsibility of the Buyer shall, in the opinion of the Company become impaired or if the Buyer shall commit any breach of any part of the Contract the Company may without prejudice to its rights and remedies hereunder stop all goods in transit and suspend further deliveries and by notice in writing to the Buyer may forthwith determine the Contract. 

11. PATENTS 

11.1 The Buyer shall indemnify 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, registered design, unregistered design, design right, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Company with the Buyer's instructions, whether express or implied. 

11.2 The supply of goods hereunder shall not confer any right upon the Buyer to use any of the Company's trademarks or other industrial or intellectual property rights which shall at all times remain the Company's property. 

12. INDEMNITY 

The Buyer agrees upon demand to indemnify the Company against all losses, damages, injury, costs and expenses of whatever nature suffered by the Company to the extent that the same are caused by or related to: 

(i) designs, drawings or specifications given to the Company by the Buyer in respect of goods produced by the Company for the Buyer; or 

(ii) defective materials or products supplied by the Buyer to the Company and incorporated by the Company in goods produced by the Company for the Buyer; or 

(iii) the improper incorporation assembly, use, processing, storage or handling of goods by the Buyer. 

 

13. PATTERNS, DIES, TOOLS, DRAWINGS AND EQUIPMENT 

a) Where the Buyer supplies patterns, dies, tools, drawings or equipment, the Company shall be entitled to assume that the same are in good condition, true to drawing and entirely suitable to the Company's methods of production, and for the production of the goods ordered in the quantities required. 

b) While the Company uses all reasonable endeavours to verify patterns, dies, tools, drawings and equipment supplied by the Buyer no responsibility is accepted by the Company for their accuracy. 

c) All replacements, alterations and repairs to the Buyer's patterns, dies, tools, drawing and equipment shall be paid for by the Buyer. 

d) Where the patterns, dies tools, drawings and equipment are not supplied by the Buyer only those which are specially made by the Company and separately charged to the Buyer in full, shall, when paid for by the Buyer become the property of the Buyer. 

e) Carriage on patterns, dies, tools and equipment supplied by the Buyer will be paid by the Company in one direction only. 

f) The Company will take all reasonable care of the Buyer's patterns, dies, tools, drawings and equipment while in the Company's possession but does not accept liability for loss or damage thereto, howsoever arising, except where neglect on the part of the Company or its agents was the direct cause of loss or damage and in those circumstances the Company's liability shall be limited to the actual cost of replacement or repair to the exclusion of all other expenses, consequential losses, loss of profits and other expenses, liabilities and losses howsoever arising. 

g) The Company reserves the right to destroy or otherwise dispose of patterns, dies, tools, drawings and equipment in its possession or custody (whether or not the property of the Buyer) from which the Buyer has not required goods to be made for a period of 12 months or more in the case of patterns and 3 years or more in all other cases. 


14. SUB-CONTRACTING 

The Company shall be entitled to sub-contract any work relating to the Contract without obtaining the consent of, or giving notice to, the Buyer. 


15. ASSIGNMENT 

None of the rights or obligations of the Buyer under the Contract may be assigned or transferred in whole or in part without the prior written consent of the Company. 


16. FORCE MAJEURE 

The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the goods, if the delay or failure was due to any cause beyond the Company's reasonable control. without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control: 

16.1 Act-of God, explosion, flood, tempest, fire or accident; 

16.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition; 

16.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; 

16.4 import or export regulations or embargoes; 

16.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party); 

16.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery; 

16.7 power failure or breakdown in machinery. 


17. HEALTH AND SAFETY AT WORK ETC 

The Buyer agrees to pay due regard to any information supplied by the Company relating to the goods and the use for which the goods are designed or have been tested or concerning the conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleared or maintained by any person at work, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the goods will be safe and without risk to health at all times as mentioned above. 


18. EXPORT TERMS 

18.1 In these conditions Incoterms means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these conditions, but if there is any conflict between the provisions of Incoterms and these conditions the latter shall prevail. 

18.2 Where the goods are supplied for export from the United Kingdom, the provisions of this clause 20 shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these conditions. 

18.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of any duties thereon.

18.4 Unless otherwise agreed in writing between the Buyer and the Company, the goods shall be delivered FCA UK carrier and the Company shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979. 

18.5 Payment of all amounts due to the Company shall be made in cash or by irrevocable letter of credit opened by the Buyer in favour of the Company and confirmed by a bank in England acceptable to the Company as the Company shall agree and the Buyer shall provide such information as is reasonably necessary for the Company to obtain insurance cover in relation to any credit arrangements agreed with the Company. The Contract shall be governed by the Laws of England and the parties hereto agree to submit to the nonexclusive jurisdiction of the English Courts.