Unless otherwise agreed in writing by Multitone, all equipment is supplied on the following conditions to the exclusions of any terms or conditions stipulated by the Purchaser and of any representations, conditions, warranties or communications not expressly incorporated herein.
1. QUOTATION AND ORDERS
Multitone’s quotations are valid only for the period stated therein or if no period is stated then only for 30 days from the date of issue. No order will result in a binding contract unless and until accepted by Multitone in writing.
2. PRICES
(a) The contract
price is the price agreed in writing by Multitone and will be paid in the
currency specified by Multitone and unless otherwise stated by Multitone in
their quotation or other written document is for delivery FOB UK Port or delivery
to UK address, packed, by the method selected by Multitone. Additional costs,
charges and expenses incurred by Multitone in accommodating any request by
the purchaser for the other methods of delivery and/or other destinations
will be charged to the Purchaser.
(b) Multitone’s quotations are based on information and data regarding
local conditions supplied by the Purchaser in writing for the purpose of quoting
and in particular but without limitation on Contract Price includes (where
appropriate) equipment giving radio coverage for such area and structures
as are specifically mentioned in the quotation. If Multitone encounters any
conditions or obstructions not disclosed by the Purchaser in writing prior
to issue of their quotation, Multitone shall not be obliged to overcome such
conditions or obstructions but if they agree to do so all additional costs,
charges and expenses thereby incurred (including but not limited to costs,
charges and expenses relating to any further or more powerful equipment and
additional cabling) will be charged to the Purchaser.
(c) Additional costs, charges and expenses incurred by Multitone as a result
of any alteration which Multitone agrees to make to quantities, delivery or
other dates or periods or changes in specification, in modifying any of the
equipment for the purpose of connection to equipment not supplied by Multitone
or, where the equipment supplied by Multitone includes items manufactured
by third parties which the purchaser has requested, in modifying such items
so as to render them compatible with other equipment will be charged to the
Purchaser as will all costs, charges and expenses incurred by Multitone in
connection with installation, testing, commissions and other work performed
by Multitone unless Multitone in writing states that such work is included
in the Contract Price.
(d) References in these Conditions to additional cost, charges and expenses
incurred by Multitone include costs, charges and expenses in respect of wasted
time, work and materials.
3. DELIVERY
(a) All delivery
and other dates or periods are given in good faith but Multitone will be under
no liability for failure to meet any such dates or period.
(b) The Purchaser shall at Multitone’s option accept part shipment of
equipment.
(c) Multitone shall not be liable for shortage or for equipment lost or damaged
in transit to the place of delivery unless the Purchaser notifies both the
carriers and Multitone in writing of such shortage, loss or damage within
30 days of delivery.
(d) If the Purchaser fails to take delivery of the equipment or any items
when tendered, the Contract Price shall immediately become due and payable
in full and Multitone shall be entitled (but without prejudice to any other
rights they may have) to charge for any additional storage, carriage and other
costs, charges and expenses incurred by Multitone as a result thereof.
(e) In respect of equipment, which is installed or commissioned by Multitone
the Actual Completion Date, shall be the date when Multitone indicates in
writing that the equipment is installed or commissioned and in respect of
equipment, which is not so installed or commissioned the Actual Completion,
date shall be the date of delivery.
(f) In these conditions “delivery” means delivery FOB UK Port
or delivery to UK Address, packed. Incoterms 1990 shall apply to these Conditions.
4. PAYMENT
(a) The part of
the Contract Price, which refers to Multitone charges for the sale, and delivery
of any item of equipment will be involved upon despatch of such item from
Multitone’s premises. All other charges will be involved upon completion
of the relevant work or (as the case may be) upon the relevant costs, charges
or expenses being incurred by Multitone. The foregoing provisions of this
paragraph shall take effect subject to any other payment schedule by Multitone
in their quotation or other written document, which may provide for other
times or methods or the provisions of guarantees or security.
(b) Payment of each Multitone’s invoices shall be in UK currency and
shall be effected unless otherwise stated in Multitone’s quotation by
Irrevocable Letter of Credit drawn on a London bank at 30 days from the date
of invoice notwithstanding that any delivery, installation or other obligations
howsoever of Multitone remain outstanding. Prompt payment in full of Multitone’s
invoices is a condition precedent to further performance by Multitone of this
or any other contract with the Purchaser and (but without prejudice to any
other rights they may have) Multitone shall be entitled to charge interest
at the rate of 1.5 per cent per month on the outstanding indebtedness from
the date on which payment becomes due.
5. PROPERTY AT RISK.
(a) The risk of
loss or damage to any item of equipment shall pass to the Purchaser when delivery
thereof is made or tendered.
(b) All equipment shall remain the sole property of Multitone until payment
for it has been received by Multitone and until all amounts owing to Multitone
by the Purchaser on any other account whatsoever have been paid to Multitone
in full.
(c) So long as equipment remains Multitone’s property the Purchaser
shall if Multitone so require keep the same marked and/or separate stored
at the purchasers expenses so as to be clearly identifiable as the property
of Multitone.
(d) Multitone may at any time recover and resell equipment (if in the Purchasers
possession) if payment for it is overdue and for this purpose Multitone employees
or agents may enter upon the Purchasers or other premises upon which the equipment
is situated. Multitone may exercise the like rights of recovery, resale and
entry so long as any payment owed by the Purchaser on any account is overdue.
(e) The Purchaser may resell the equipment to third parties in the normal
course of business and the proceeds of any such resale shall belong to Multitone
to the extent that any payment or amounts referred to in paragraph (b) above
remain owing by the Purchaser and the Purchaser shall be under a fiduciary
duty to account to Multitone for such proceeds. If so required by Multitone
the Purchaser shall pay all such proceeds of sales into a separate trust account
pending accounting to Multitone therefore.
(f) The Purchaser shall not be deemed to be the agent of Multitone for any
purpose other than as may be necessary to give effect to paragraph (e) of
this condition and the purchaser shall indemnify Multitone against any liability
that Multitone may incur to third parties (Whether in contract tort or otherwise
and including all costs and expenses of Multitone attributable thereto) in
connection with the equipment other than liability which would have arisen
if the preceding paragraphs of this condition had not formed part of the contract
of sale.
(a) Subject to paragraphs (c) and (D) below and to paragraph (c) of Conditions 3, any items of equipment manufactured by Multitone which contain defects of Materials or workmanship will at the option of Multitone be replaced or replaced free of charge provided that: -
(i) such defects
are notified to Multitone in writing within 12 months from the date of delivery.
(ii) the Purchaser if so requested returns the equipment carriage paid to
Multitone’s premises together with sufficient details in writing to
enable the equipment date of original delivery and the alleged defects to
be identified.
(iii) the environment conditions and operational maintenance instructions
prescribed by Multitone have been strictly complied with and the equipment
has not been damaged as a result of accident, neglect, misuse or any other
improper use or treatment.
(iv) repairs, alterations or modifications have not been made or attempted
by anyone other than Multitone or their authorised agent.
(b) Where Multitone
are not obliged to replace or repair equipment by the Purchaser they may at
their sole discretion and without prior notice to the Purchaser repair or
replace the same and charge to the Purchaser all labour, replacement parts
and equipment and incidental expenses.
(c) Performances rating, while given in good faith, are estimates only based
upon performance under Multitone’s standard test conditions and accordingly
Multitone shall not be liable for any failure to attain any performance rating
given to the Purchaser.
(d) Under no circumstances will Multitone be liable for the repair or replacement
of batteries.
(e) Subject to paragraph (f) below:
(i) Multitone’s
liability in terms of these conditions is in lieu and to the exclusion of
all other warranties, conditions or obligations imposed or implied by statute,
common law or otherwise.
(ii) Multitone shall not be liable for any indirect or consequential loss
or damage howsoever arising including without limitation, loss or profit of
anticipated savings, loss of contracts or loss by reason of plant shut-down,
non-operation or increases expenses or operation.
(iii) Multitone’s total liability whether in contract or otherwise for
loss or damage resulting from its negligence shall not exceed in aggregate
1,000,000 Pounds Sterling or the sum of the amounts (if any) paid by the Purchaser,
whichever is the lower.
(f) Multitone do not seek to limit their liability for death or personal injury resulting directly from the negligence of Multitone or to limit their liability for breach of obligations arising from Section 12 of the Sales of Goods Act 1979 where the Purchaser’s principal place of business is within the United Kingdom. Except as is expressly set out in this Agreement, Multitone will not be liable for any loss or damage, howsoever caused, suffered by the Purchaser.
7. DELAY OR CANCELLATION
Multitone shall not be liable for any delay or partial or non-performance of any of its obligations due to any cause beyond its reasonable control. In the event of delay due to any such cause, Multitone shall be granted a reasonable extension of time to overcome the same and shall be reimbursed by the Purchaser all additional expenses that Multitone shall have incurred or might incur by reason of the delay. In the event of any cancellation due to any such cause as foresaid, Multitone shall be paid a reasonable amount for their performance up to the time of cancellation.
8. PURCHASER’S RESPONSIBILITIES
(a) The Purchaser shall at it’s own risk and expenses promptly: -
(i) Obtain and
pay for and give Multitone such details as Multitone may reasonably require
for all radio frequencies, licences, authorise, wayleaves and consents necessary
in relation to the equipment and it’s manufactures, supply, use and
installation (including without limitation in relation to the connection of
the equipment to equipment not supplied by Multitone and the installation
of equipment on land belonging to third parties) and notwithstanding the refusal
or withdrawal of any such licence, authority, wayleave or consent the Purchaser
shall duly pay all of Multitone’s invoices in accordance with Condition
4;
(ii) Allow Multitone during their normal working hours free and unhindered
access to all relevant sites and structures when equipment is to be installed
or commissioned by Multitone;
(iii) Give Multitone all such technical and other information and assistance
as they may reasonably require;
(iv) Obtain and/or make all necessary modifications to any equipment not supplied
by Multitone to which the equipment will be connected or in conjunction with
which the equipment is intended to operate; and
(v) Arrange for the carriage of the equipment from the United Kingdom, obtain
any export licence or other official authorisation necessary for the export
of the equipment from the United Kingdom and pay all taxes, fees and charges
levied in respect of such export.
(b) Due performance of the foregoing is a condition precedent to further performance by Multitone of their obligations and (but without prejudice to any other rights they may have) Multitone shall be entitled to charge to the Purchaser all additional costs, charges and expenses incurred by Multitone as a result of any defaults.
9. INSURANCE AND IMDEMNITY.
(a) Multitone shall
effect personal accident and employees liability insurance on behalf of its
personnel services hereunder.
(b) Multitone shall insure each item of equipment up to the date on which
delivery is tendered.
(c) The Purchaser shall indemnify Multitone against;
(i) All claims
and associated costs and/or expenses for infringement of third parties patent
or other industrial or intelligence property rights, and all costs, charges
and expenses incurred in connection therewith arising from the execution of
the Purchaser’s order in accordance with any designs, plans or specification
of the Purchaser;
(ii) All claims and associated costs and/or expenses for loss, injury or damage
against Multitone by third parties, and all costs charges and expenses incurred
in connection therewith, arising from any cause whatsoever save where such
loss, injury or damage arises as a direct result of the negligence of Multitone,
their employees or agents.
10 INSOLVENCY OF PURCHASER ETC.
If the Purchaser makes default in or commits any breach of any of its obligations or if any distress or execution is levied upon any property or assets of the Purchaser or if the Purchaser makes or offers to make any arrangement or composition with creditors or commits any act or bankruptcy, or if any petition or receiving order in bankrupt is presented or made against the Purchaser, or if the Purchaser is a company and any resolution or petition for its winding-up is passed or presented otherwise than for the purposes of a solvent reconstruction or amalgamation or if a receiver, administrative receiver or administrator is appointed of the undertaking, property or assets of the Purchaser or any parts thereof, or if the Purchaser suffers or takes any similar step in consequence or debt under the law of any jurisdiction dealing with insolvency, Multitone shall be next entitled ( But without prejudice to any other rights they may have) forthwith to determine any contracts with the Purchasers by summary notice.
11. CANCELLATION
If the Purchaser cancels its order the Purchaser shall pay Multitone by way of agreed liquidation damages;
(i) where manufacture
has commenced and the equipment cannot be immediately used in fulfilling an
order from another customer of Multitone, all costs and expenses incurred
by Multitone in connection with the manufacture of the equipment;
(ii) where manufacture has commenced and the equipment can if modified be
immediately used in fulfilling another order, all costs and expenses incurred
by Multitone in modifying the equipment;
(iii) where manufacture has not commenced, 20% of the Contract price.
12. GOVERNING LAW
These conditions and any contract ensuing from Multitone’s quotation shall be construed and shall take effect in all respects in accordance with English Law and the Purchaser hereby irrevocably submits to the non-exclusive jurisdiction of the English Courts.
