1.1 In this document the following terms shall have the following meanings:
“Conditions of Sale” means the terms and conditions set out in this document.
“Contract” means a contract between Monitran and the Customer for the sale and supply of the Products in accordance with the Conditions of Sale.
“Customer” means the customer who orders the Products under the Contract.
“Force Majeure Event” means an event, or a series of related events, that is outside Monitran’s reasonable control including but not limited to power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars.
“Monitran” means Monitran Ltd, a limited company incorporated in England and Wales (registration number 2054040) having its business address and registered office at 33 Hazlemere Road Penn Bucks HP10 8AD UK.
“Order” means an order made by a Customer for Products.
“Order Acknowledgment” means the document delivered by Monitran to the Customer in confirmation and acceptance of the Customer’s Order.
“Parties” means Monitran and the Customer and “Party” shall be construed accordingly.
“Price” means the price agreed between the Parties under the Contract for the sale and supply of the Products.
“Products” means the products or services or any combination of them ordered by the Customer from Monitran under the Contract and which are detailed in the Order Acknowledgment.
2 Conditions of Sale
2.1 Unless otherwise agreed in writing the Conditions of Sale shall be deemed to be incorporated as conditions into any Contract entered into by Monitran. The Customer’s terms and conditions shall only be incorporated into the Contract if and insofar as they are not inconsistent with the Conditions of Sale and have been expressly accepted by Monitran in writing.
2.2 Subject to clause 2.1 the Conditions of Sale and the Order Acknowledgment constitute the entire agreement between the Parties in relation to the subject matter of the Contract and contain the only conditions upon which Monitran will deal with the Customer and they govern all Contracts to the exclusion of all other terms and conditions and supersede all previous agreements, arrangements and understandings between the Parties in respect of that subject matter.
3.1 Each order for Products given by the Customer to Monitran will be deemed to be an offer by the Customer to purchase Products from Monitran subject to the Conditions of Sale.
3.2 In order for a Contract to come into force the Customer must submit an order to Monitran whereupon Monitran will send to the Customer an Order Acknowledgment.
3.3 Upon the issue by Monitran of the Order Acknowledgment a Contract will come into force between the Parties into which these Conditions of Sale will be incorporated.
4.1 Unless otherwise agreed in writing all Products will be delivered by Monitran to the Customer’s premises. If it is agreed that the Customer shall collect the Products from Monitran’s premises or any other location then the Products will nevertheless be deemed to have been delivered to the Customer.
4.2 Risk in the Products will pass from Monitran to the Customer as soon as the Products are delivered to the Customer.
4.3 If the Parties agree that delivery of Products under a Contract will be by instalments, each instalment will constitute part of a single Contract and not separate Contracts.
4.4 All best endeavours will be made to meet estimated delivery dates but no liability whatsoever will be accepted for failure to do so. Any date or dates agreed by the Parties for delivery of the Products will not be of the essence of the Contract and failure to meet a delivery date shall not prejudice any other Contract.
4.5 A charge will be made against all Orders to cover carriage and packing. Every effort will be made to provide an accurate estimate of delivery charges at the time of quotation but these charges are liable to variation without notice.
5.1 Legal and equitable title to the Products will pass from Monitran to the Customer upon the later of either (a) delivery of the Products or (b) receipt by Monitran of all amounts due from the Customer to Monitran under the Contract.
5.2 Until title to the Products has passed to the Customer the Customer will hold the Products as fiduciary agent and bailee of Monitran and will (a) store the Products in a secure, safe, dry and clean environment separately from other products and goods; (b) ensure that the Products are easily identifiable as belonging to Monitran; (c) not deface, destroy, alter or obscure any identifying mark on the Products or their packaging; (d) ensure that no charge, lien or other encumbrance is created over the Products; and (e) deliver up the Products to Monitran upon demand.
5.3 Monitran shall be entitled without further notice to inspect or recover possession of any Products to which it retains title and the Customer grants to Monitran and its employees and agents an irrevocable licence to enter at any time any premises where the Products are or may be situated for the purpose of inspecting or removing any such Products the title to which has remained with Monitran.
5.4 Monitran may bring an action for any amounts due under a Contract notwithstanding that title to the Products has not passed to the Customer
6.1 All quotations are subject to alteration at any time without notice in accordance with usual practice.
6.2 Whilst every endeavour is made to ensure the accuracy of quotations, no responsibility is accepted for any errors or omissions.
6.3 Quotations will hold good for 60 days from the date of the quotation unless otherwise agreed in writing.
7.1 The Price will be based on prices in force at the date of despatch.
7.2 Orders for scheduled delivery will be charged at the rate applicable to the quantity called off and not to overall quantity unless other terms have been expressly agreed in writing.
7.3 Monitran may issue an invoice for the Price to the Customer under a Contract at any time after the Products have been delivered to the Customer whereupon the Customer will pay the Price to Monitran on a strictly nett monthly basis.
7.4 All amounts payable under a Contract are exclusive of VAT and all other taxes and duties which will be payable by the Customer and will not be a liability of Monitran.
7.5 All prices are subject to the current rate of VAT in force at the date of despatch.
7.6 If the Customer does not pay any amount properly due to Monitran under or in connection with a Contract Monitran may at its sole discretion (a) charge the Customer interest on any overdue amount at the rate of 8% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand) or (b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
8.1 Single invoices only are rendered and a charge will be made for additional copies.
9 New accounts
9.1 Customers wishing to open ledger accounts are required to furnish two trade references and a banker's reference.
10 Storage or Damage in Transit
10.1 No liability will be accepted for any shortage or damage in transit unless both Monitran and the carrier are notified in writing within three working days of receipt of the goods.
10.2 No liability will be accepted for non-delivery unless both Monitran and the carrier are notified in writing on the same day that the invoice is received by the Customer.
11 Order Cancellation, Amendment and Suspension
11.1 Orders can only be cancelled, amended or suspended at Monitran’s sole discretion after prior negotiation and agreement, and cannot be cancelled where items have been ordered specifically on the customer’s behalf.
12.1 Monitran will promptly and fully respond to all reasonable enquiries and complaints made by the Customer relating to the quality, performance and durability of the Products.
12.2 If Monitran in its sole discretion deems that a return for credit is appropriate outside of warranty then this will be processed strictly on terms specially formulated by Monitran and agreed with the Customer on a case-by-case basis, but in any event with the requirement that the Products are received at Monitran’s business premises within 30 days of the Customer raising the issue.
12.3 A charge of 20% of the Price will be levied on all Products ordered but subsequently “not wanted” or found to have been ordered in error with a minimum charge of £50.00. Any such products must be received at Monitran’s business premises within 30 days of initial receipt by the Customer.
12.4 All Products returned must be properly packaged and received in an undamaged state.
12.5 All costs of returning Products shall be borne by the Customer. Specially manufactured Products will not be accepted for credit.
12.6 Any Products returned otherwise than as stipulated in this clause will not be the subject of any credit or replacement and the Customer will continue to be liable for payment of the full Price in respect of such Products.
13.1 All Products are guaranteed against defects in materials and workmanship for a period of 24 months from the date of purchase. In the event of failure within 24 months of the original purchase and without prejudice to the Customer’s other rights and remedies the Customer may return the defective Products for repair or replacement without charge and receive a full credit of the reasonable costs of returning the Products.
13.2 This warranty is void if repair has been attempted by unauthorised persons or agents, if the Products have been used for purposes for which they were not intended, if they have been subjected to abuse or wilful neglect or if the user has in any way failed to take sufficient precautions to safeguard the Products.
13.3 No liability will be accepted for loss of items or component parts.
14.1 Monitran is continually updating its designs and reserves the right to change specifications without prior notice.
15 Limitation and Exclusion of Liability
15.1 Nothing in the Contract will (a) limit or exclude the liability of a Party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a Party for fraud or fraudulent misrepresentation by that Party; (c) limit or exclude any liability of a Party under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; (d) limit any liability of a Party in any way that is not permitted under applicable law; or (e) exclude any liability of a Party that may not be excluded under applicable law.
15.2 Subject to this, Monitran will not be liable in respect of (a) any loss of profits, income, revenue, use, production or anticipated savings; (b) any loss of business, contracts or commercial opportunities; (c) any loss of or damage to goodwill or reputation; (d) any loss or corruption of any data, database or software; (e) any special, indirect or consequential loss or damage; or (f) any losses arising out of a Force Majeure Event. If however any such liability shall accrue to Monitran then Monitran’s aggregate liability under the Contract will not exceed the total amount paid and payable by the Customer to Monitran under the Contract.
16.1 No breach of any provision of a Contract will be waived except with Monitran’s express written consent.
16.2 If any provision of a Contract is determined by any court or other competent authority to be unlawful or unenforceable the other provisions of the Contract will continue in effect. If any unlawful or unenforceable provision would be lawful or enforceable if part of it were deleted then that part will be deemed to be deleted and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties in which case the entirety of the relevant provision will be deemed to be deleted).
16.3 Contract may not be varied except by a written document signed by or on behalf of each of the Parties.
16.4 Monitran may freely assign its rights and obligations under a Contract without the Customer’s consent. Save as expressly provided in this clause or elsewhere in a Contract, the Customer may not without the prior written consent of Monitran assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under a Contract.
16.5 Each Contract is made for the benefit of the Parties alone and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind or agree any amendment, waiver, variation or settlement under or relating to a Contract are not subject to the consent of any third party.
16.6 Neither Party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into a Contract.
16.7 Neither Party will have any liability other than pursuant to the express terms of a Contract.
16.8 Contracts will be governed by and construed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with a Contract.