TERMS AND CONDITIONS OF SALE

1.          General

1.1        The terms and conditions of sale set out in this document (“Terms and Conditions”) represent the entire agreement and understanding between us and override any other express or implied terms in relation to any contract for sale of goods (“Contract”).  These Terms and Conditions can be altered only by a written statement signed by one of our duly authorised officers.  The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of us, which is not set out here or in the contract.

1.2        Subject to any variation under condition 1.1 the Contract shall be on these Terms and Conditions to the exclusion of all other terms and conditions (including any terms or conditions upon which you purport to apply under any purchase order, confirmation of order, specification or other document).

1.3        No terms or conditions endorsed on, delivered with or contained in your purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

1.4        These Terms and Conditions shall apply only to contracts made between you and us.  You agree that it is not our intention that any term shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

1.5        Our quotations and price lists are merely for information and do not constitute an offer to contract.  A binding contract will only arise when we have received your formal order and accepted it by sending you an acknowledgement of order.

1.6        Once our acknowledgement has been sent an order can only be cancelled or altered if we agree in writing to accept cancellation or alteration.  Even if we do accept this we reserve the right to charge for any costs reasonably incurred by us up to the date of alteration and/or cancellation.

1.7        Failure or delay by us in enforcing or partially enforcing any provision of these terms shall not be construed as a waiver of any of our rights under these Terms and Conditions or the Contract.

1.8        These Terms and Conditions are governed by Incoterms 2010, on the Ex-Works basis unless stated otherwise.

2.          Price

2.1        Orders for items will be charged at the price shown in our current price list at the date of delivery, which is exclusive of any lawful tax.

2.2        Where we have given a quotation for goods we will accept orders at the prices given in the quotation provided the order is placed within 30 days of the date of the quotation.  If the order is not placed within 30 days we have the right to issue a new quotation.

3.          Payment Terms

3.1        A deposit payment is required at the time of the order being placed, which may be waived at our discretion.

3.2        Subject to the provisions of clause 1.6, in the event that we agree to the cancellation of an order, the return of the deposit (in whole or part) is entirely at our discretion.

3.3        Unless otherwise agreed, all invoices must be paid in full without demand, deduction, set off or counterclaim, within the due periods as specified on our quotations or invoices.

3.4        If you fail to pay us any sum due pursuant to the Contract, you shall be liable to pay interest to us on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank PLC, accruing on a daily basis until payment is made, whether before or after any judgment.

4.          Delivery

4.1        Delivery is Ex-Works, as defined by Incoterms 2010, at the premises of our freight forwarder (Mersey Forwarding) 1 Church street, Bootle, Liverpool L20 1AF United Kingdom, and is entirely your responsibility, with the exception of normal delivery to addresses in Great Britain, for which Milkys Solutions UK Ltd will be responsible.

4.2            Time shall not be of the essence in relation to delivery of the goods.

4.3        Any liability that we may have for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such goods.

4.4        You must arrange for manpower and equipment to be available to unload the goods when they are delivered.

5.          Damage and Loss in Transit

5.1        Unless delivery is to an address in Great Britain, the goods are your responsibility from the time of dispatch from our premises and any loss or damage of equipment in transit is entirely your responsibility as defined in Incoterms 2010.

5.2        If delivery is to an address in Great Britain and you think that any of the goods have been damaged in transit or that some goods have not been delivered you must notify us in writing within five days of receipt.  You must also retain any packaging in which the damaged goods were delivered.  We cannot accept any responsibility for any such claim unless you comply with these requirements.

6.          Retention of Title

6.1        Ownership of the goods, which are the subject of the Contract, shall not pass to you until they are fully paid for.  Until we have received full payment you must store the goods in such a way as clearly to indicate at all times that the goods are owned by us and not do anything to the goods, which may prevent them from being identified.  We reserve the right to enter upon any relevant land or buildings with such transport as may be necessary for the purpose of repossession but this shall be without prejudice to any other rights or remedies arising from any breach of contract.

6.2        You have our permission (which we can withdraw at any time by notice) to sell goods which have not been paid for as our fiduciary bailee in the normal course of your business, and to dispose of the goods by way of a bonafide sale at full market value.  When your customer pays you for those goods you must hold the money to our order.

6.3        If while we retain ownership of the goods the goods are incorporated in or attached to other goods the ownership of the whole of such goods shall vest in us and you shall hold such goods as our bailee and to our order until we have received payment in full in respect of our goods. 

7.          Risk

7.1        Even though goods remain our property until you have paid for them they are at your risk from the time of dispatch from our premises and you are responsible for and should put in place at your own expense all risk insurance.  You are responsible for taking care of them, which includes (but is not limited to) storing them under suitable conditions.      

7.2        You may resell the goods before ownership has passed to you solely on the following conditions;

7.2.1                  Any sale shall be effected in the ordinary course of your business at full market value;

7.2.2                            Any such sale shall be a sale of our property on your own behalf and you shall deal as principal when making such a sale;

7.2.3     You ensure that as part of your terms and conditions of sale between you and your customer, the cancellation provisions as set out in these Terms and Conditions are incorporated.

8.          Warranty

8.1        We will make good by repair or the supply of replacement defects which under proper use appear in the goods we supply within a period of twelve calendar months after the goods have been dispatched and arise solely from faulty design (other than a design made, furnished or specified by you for which we have disclaimed responsibility in writing) materials or workmanship, provided always that defective parts have been returned under our approved procedure.

8.2        You accept responsibility for the return of the goods to our premises at your own cost.

8.3        Our liability under this clause as to the quality or fitness for any particular purpose of the goods shall be in lieu of any warranty or condition implied by law.  Save as provided in this clause and in clause 9 below we shall not be under any liability whether in contract tort or otherwise in respect of the defects in goods delivered or for any injury (other than personal injury caused by our negligence as defined in the Unfair Contract Terms Act 1977 section 1) damage or loss resulting from such defects or from any work done in connection therewith.

8.4        This guarantee does not apply to defects caused entirely or partly by: -

              8.4.1               Fair wear and tear in consumable parts (which includes all rubber and silicon parts);

              8.4.2               A third party’s products being used with our equipment;

              8.4.3               Interference caused by transmitted radiation or the proximity of other electrical equipment;

              8.4.4               Fluctuations in the power supply, and / or abnormalities in the electrical power supply.

              8.4.5               Negligent or defective workmanship and the design of the premises in which the goods are to be installed or in the installation of the goods;

              8.4.6               Failure to maintain or use the equipment precisely in accordance with our instructions and recommendations;

              8.4.7               Any advice we give on the design and installation of the goods where you have supplied us with wrong, incomplete or misleading information.

8.5                     If any defect does arise as stated above then you must notify us in writing as soon as reasonably practicable or in any event within fourteen days of the fault arising.

9.          Limitation of Liability

9.1        Subject to Clause 4 and Clause 8 the following provisions set out our entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of:

9.1.1                   Any breach of these conditions;

9.1.2                   Any use made or resale by you of any of the goods, or of any product incorporating any of the goods; and

9.1.3                   Any representation, statement or tortious act or omission including negligence arising under or in connection with any contract for sale.

9.2        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.

9.3        Nothing in these conditions excludes or limits our liability:

9.3.1                   For death or personal injury caused by our negligence; or

9.3.2                   Under section 2(3), Consumer Protection Act 1987; or

9.3.3                   For any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

9.3.4                   for fraud or fraudulent misrepresentation.

9.4        Subject to clause 9.2 and clause 9.3:

9.4.1         our 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 the Contract shall be limited to price paid by the Buyer for the goods under the Contract; and

9.4.2         We shall not be liable to you for loss of profit, loss of business, in each case whether direct, indirect or consequential which arise out of or in connection with the Contract.

10.   Anti-Bribery

10.1      We shall:

              (a)        comply with all applicable laws, statues and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

              (b)        Comply with our Ethics, Anti-bribery and Anti-corruption Policies as amended from time to time (Relevant Policies);

              (c)         have and shall maintain in place throughout the term of the Contract our own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies, and will enforce them where appropriate;

              (e)        promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by us in connection with the performance of any contract for the sale of goods made pursuant to these terms and conditions;

              (f)         Immediately notify the Buyer (in writing) if a foreign public official becomes an officer or employee of us or acquires a direct or indirect interest in us (and we warrant that we have no foreign public officials as officers, employees or direct or indirect owners at the date of the Contract);

              (g)        within 3 months of the date of  the Contract, and annually thereafter, on request by the Buyer certify to the Buyer in writing compliance with this clause 1 by us and all persons associated with us under clause 1.2.

10.2      We shall use reasonable endeavours to ensure that any person associated with us who is performing or providing goods in connection with the Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on use in this clause 1 (Relevant Terms).  Notwithstanding the above, we shall have no liability to the Buyer for any breach by such persons of any of the Relevant Terms.

10.3      For the purpose of this clause 10, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.  For the purposes of this clause 10 a person associated with us includes but is not limited to any of our subcontractors.

11.        Ownership Rights

              All technical information, schematics, drawings and all other information in relation to the goods or their installation are our property and you are not allowed to do anything which may damage or endanger or challenge the validity of these ownership rights and you should not reproduce or otherwise use these without our prior written permission.

12.        Severance

              If any provision of these Terms and Conditions are prohibited by law or adjudged by a Court to be unlawful, void or unenforceable then that provision shall to the extent required be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining terms of these Terms and Conditions and shall not in any way affect any other circumstances or the validity or enforcement of these Terms and Conditions.

13.        Force Majeure

13.1      We cannot accept responsibility for any failure to fulfil our part of the contract which is caused by or attributable to acts, events, omissions or accidents beyond our reasonable control, including but not limited to any of the following:

13.1.1       Acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;

13.1.2       war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;

13.1.3       Terrorist attack, civil war, civil commotion or riots;

13.1.4       Nuclear, chemical or biological contamination or sonic boom;

13.1.5       Voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of               the law);

13.1.6       Fire, explosion or accidental damage;

13.1.7       Loss at sea;

13.1.8       Adverse weather conditions;

13.1.9       Collapse of building structures, failure of plant machinery, machinery, computers or vehicles;

13.1.10    any labour dispute, including but not limited to strikes, industrial action or lockouts;

13.1.11    non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and

13.1.12    interruption or failure of utility service, including but not limited to electric power, gas or water.

14.             Installation

                    This clause applies only where we have agreed to install and/or commission the equipment.

14.1                        You are responsible for carrying out all structural alterations and any other works necessary to prepare the premises for the installation of the equipment. 

                     These works must be completed prior to our estimated delivery date and must comply with any instructions, designs or specifications that we may give to you. 

14.2                          If installation of the goods is delayed because of your breaches of clause 13.1 above then we have the right to levy an additional charge to cover our direct and indirect costs

                     Incurred as a result.

14.3                   The equipment is at your risk from the time it is delivered to you even though we are working with it.  You must comply with clause 7 above.

14.4                   You are responsible for the supply and connection of all mains services including but not limited to water, drainage and electricity.

We will use all reasonable endeavours to ensure that the installation works will be carried out in a good and workmanlike manner provided that our liability for the consequence of any negligent workmanship in the course of installation is limited in the same way as provided in clauses 8 and 9 above

15.        Termination on Non-Payment or Insolvency

15.1      We may suspend or terminate the Contract on thirty (30) days written notice to the Buyer if the Buyer fails to comply with any term, provision or condition of the Contract, or these Terms and Conditions, and shall fail to cure such non-compliance before the end of such thirty (30) day period.

15.2      We may at any time terminate the Contract with immediate effect by giving written notice to the Buyer if:

15.2.1       the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

15.2.2       the Buyer commits a material breach of any term of the Contract (other than failure to pay any amounts due under the Contract) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

15.2.3       the Buyer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

15.2.4       the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

15.2.5       the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;

15.2.6       a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Buyer other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;

15.2.7       an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;

15.2.8       a floating charge holder over the assets of the Buyer has become entitled to appoint or has appointed an administrative receiver;

15.2.9       a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer;

15.2.10    a creditor or encumbrance of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

15.2.11    any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.4 to clause 14.2.10 (inclusive); or

15.2.12    the Buyer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

15.3      Termination of the Contract, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

16.        Indemnity

              You will indemnify us and keep us indemnified against any loss, damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by any breach by you of these Terms and Conditions including any act neglect or default by your employees or agents and including any breach by you resulting in any successful claim by any third party.

17.        Governing Law

              These Terms and Conditions shall be governed by and construed in accordance with English Law and be under the exclusive jurisdiction of the Courts of England.

18.        Date & Revision

              These Terms & Conditions are dated 29th May 2012. Revision Number [1/12]