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  1. DEFINITION

1.1 In these terms and conditions the following words have the following meanings: –

Word Meaning

“Buyer” the person(s) or company whose order for the Goods is accepted by the Company including their successors and/or personal representatives;

“Company” MGF (Trench Construction Systems) Limited and includes its successors and assigns, and the Company shall be entitled to sub-contract all or any of it rights and/or obligations hereunder.

“Consequential Loss” pure economic loss, loss of use, loss of profit, loss of production, loss of contract, any financial or economic loss, loss of business, depletion of goodwill

and like loss;

“Contract” any contract between the Company and the Buyer for the sale and purchase of the Goods;

“Goods” any goods which the Company is to supply to the Buyer (including any of them or any part of them).

1.2 The headings in these terms and conditions are for convenience only and shall not affect their interpretation.

 

  1. FORMATION AND INCORPORATION

2.1 The Buyer makes the Contract in the course of a business and has selected the Goods relying solely on his own skill and judgment.

2.2 Subject to any variation under condition 2.4, the Contract will be on these terms and conditions set out below to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document).

2.3 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these terms and conditions.

2.4 Any variation to these terms and conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company.

2.5 Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of these terms and conditions.

2.6 No order which the Company has accepted may be cancelled by the Buyer except with the written agreement of the Company and on the terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses or incurred by the Company as a result of such cancellation.

 

 

 

  1. DESCRIPTIONS

3.1 All descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or on the website 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.

3.2 The Company reserves the right to amend, improve or correct any information provided on the Goods.

 

  1. AVAILABILITY

4.1 Only orders delivered to mainland United Kingdom will be accepted, orders placed online for other territories outside of mainland UK will be refunded in accordance with these terms.

4.2 The Company reserves the right to cancel an order if the Goods are out of stock or are unavailable for any other reason, including but not limited to incorrect pricing on the website, and the Buyer will be refunded.

4.3 No variation in the specification or design of any Goods which, in the Company’s reasonable opinion, does not adversely affect the suitability of the Goods for the particular purpose for which they are supplied by the Company will constitute a breach of contract or impose any liability upon the Company.

4.4 If any part of an order is unavailable the Company will contact the Buyer, an alternative product may be offered but the Buyer may cancel the order and receive a refund.

 

  1. DELIVERY

5.1 Any dates specified by the Company for delivery of the Goods are approximate only and may not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.

5.2 Promotions removing delivery charges may be removed from the website by the Company at any time without prior notice.

5.3 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

5.4 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a refund.

5.5 It is the Buyer’s responsibility to ensure that the delivery address and any delivery instructions provided to the Company are both complete and accurate.

5.6 Items will be deemed delivered when the Company or its authorised courier company deliver the Goods to the address specified by the Buyer. If no one is available at the address to take delivery, the Company or its authorised courier company will use its reasonable endeavours to follow any delivery instructions provided by the Buyer, but this cannot be guaranteed. Alternatively, the Goods will be left in an area that the authorised courier company considers safe, and the Goods will be deemed to have been delivered.

 

  1. RETURNS

6.1 If the Buyer is not 100% satisfied with their purchase the product can be returned to the Company within 30 calendar days. A refund will be issued which will not contain any shipping costs.

6.2 If any Goods are considered faulty the Buyer should contact the Company as soon as possible to receive a full refund including shipping costs, the Buyer is responsible for returning the faulty Goods.

6.3 Any Goods returned to the Company must be in the same condition as supplied and in the original packaging.

 

  1. FORCE MAJEURE

7.1 The Company shall not be liable to the Buyer in any manner or be deemed to be in breach of the Contract (subject to condition 11) because of any delay in performing or any failure to perform any of the Company’s obligations under this Contract if the delay or failure due to any cause beyond the Company’s reasonable control.

7.2 Without prejudice to the generality of condition 7.1 the following shall be included as causes beyond the Company’s reasonable control:

7.2.1 governmental actions, war or threat of war, national emergency, riot, civil disturbance, sabotage or requisition;

7.2.2 Act of God, fire, explosion, flood, epidemic or accident;

7.2.3 import or export regulations or embargoes;

7.2.4 labour disputes whether or not including disputes involving the Company’s work-force; or

7.2.5 inability to obtain or delay in obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour.

 

  1. RISK/OWNERSHIP

8.1 Risk of damage to or loss of Goods shall pass to the Buyer upon delivery or deemed delivery.

8.2 Ownership of the Goods shall not pass to the Buyer until the Company has received cleared funds in full for all sums due to it in respect of:

8.2.1 the Goods; and

8.2.2 all other sums which are or which become due to the Company from the Buyer on any account.

8.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:

8.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;

8.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property and easily accessible and returnable to the Company;

8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;

8.3.4 maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company and naming the Company as loss payee. On request the Buyer shall produce the policy of insurance to the Company;

8.3.5 hold the proceeds of the insurance referred to in condition 7.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

8.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:

8.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall account to the Company accordingly; and

8.4.2 any such sale shall be a sale of the Company’s property on the Company’s behalf and the Buyer shall deal as agent when making such a sale.

8.5 Where the Company is unable to determine whether any goods are the Goods, the Company shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

8.6 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.

8.7 The Buyer 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 Buyer’s right to possession has terminated, to recover them and that all such premises are in a safe and accessible condition to enable the Company to do this.

8.8 The Buyer shall be liable for any costs, damages or expenses which either of the Buyer, the Company or any third party shall suffer by reason of the Company exercising any of its rights under clause 8.7.

 

  1. PRICE

9.1 The price for the Goods shall be as detailed on the Company’s website (at the time and date of acknowledgement of order by the Company) subject to any discounts agreed by the Company.

9.2 The price for the Goods is exclusive of any value added tax or any other applicable tax which the Buyer shall pay in addition when it is due to pay for the Goods.

9.3 The price for the Goods is exclusive of any shipping costs which the Buyer shall pay in addition when it is due to pay for the Goods.

9.4 Promotions lowering the price of Goods on the website may be removed by the Company at any time without prior notice.

 

  1. PAYMENT

10.1 Payments for online purchases shall be made via credit or debit cards, which will be charged when the goods are ordered and the Company shall not accept payment via cash, cheque, purchase order or any other payment method.

10.2 The Buyer warrants that it has the necessary rights to use the payment card and that it is fully authorised to use it to pay for the order.  The Buyer also warrants that the card gives access to sufficient funds corresponding to the amount of the order in full.

10.3 No payment shall be deemed to have been received until the Company has received cleared funds, without which the Company reserves the right to cancel the Contract.

10.4 The Company will use its reasonable endeavours to ensure that all of the information that is provided by the Buyer when paying for goods is secure using an encrypted secure payment mechanism but, in the absence of the Company’s negligence, the Company will not be legally responsible for any loss that a purchaser may suffer if a third party gains unauthorised access to any information provided.

 

  1. QUALITY

11.1 Where the Company is not the manufacturer of the Goods the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.

11.2 Pursuant to Section 6(8) of the Health and Safety at Work Act 1974, the Buyer will inspect the Goods immediately on its delivery to the buyer to ensure, so far as is reasonably practical, that the Goods will be safe and without risk to health when properly used.

11.3 The Company warrants that (subject to the other provisions of these terms and conditions) upon delivery the Goods will be of satisfactory quality within

the meaning of the Sale of Goods Act 1979.

11.4 The Company shall not be liable for a breach of the warranty in condition 11.3 unless:

11.4.1 the Buyer gives written notice of the defect to the Company and, if the defect is as a result of damage in transit, also to the carrier within 5 working days of:

11.4.1.1 the date of delivery (where the defect would be apparent to the Buyer upon a reasonable inspection); or

11.4.1.2 the date when the Buyer knew or ought reasonably to have known of the defect (where the defect would not be apparent to the Buyer upon a reasonable inspection); and

11.4.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.

11.5 The Company shall not be liable for a breach of the warranty in condition 11.3 if:

11.5.1 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

11.5.2 the Buyer alters or repairs such Goods without the written consent of the Company; or

11.5.3 the defect in such Goods arises from any design defect in any drawing, design or specification supplied or approved by the Buyer.

11.6 If the Buyer makes a valid claim against the Company based on a defect in the quality of the Goods, the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro-rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company.

11.7 If the Company complies with condition 11.6 it shall have no further liability for a breach of the warranty in condition 11.3 in respect of the quality of such Goods.

11.8 Any Goods repaired or replaced by the Company pursuant to this condition 10 will be supplied pursuant to these terms and conditions.

  1. LIMITATION OF LIABILITY

12.1 The following provisions of this condition 12 and the provisions of condition 11 set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Buyer in respect of:

12.1.1 any breach of these terms and conditions; and

12.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

12.2 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 excluded from the Contract.

12.3 Nothing in these terms and conditions excludes or limits the liability of the Company for fraudulent misrepresentation or death or personal injury caused by the Company’s negligence.

 

THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 12.4 AND 12.5

12.4 Subject to conditions 12.2 and 12.3:

12.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Goods; and

12.4.2 the Company shall not be liable to the Buyer by reason of any representation or any implied warranty, condition or other term or any duty at law or under the express terms of the Contract for any indirect or Consequential Loss, costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its employees, agents or sub-contractors) which arise out of or in connection with the Contract.

12.5 The Buyer shall indemnify the Company and keep it indemnified in fall against all liability, loss, damages, costs and expenses (including legal expenses on an indemnity basis) which the Company may suffer or incur as a result of or arising out of or in connection with: –

12.5.1 any negligence by the Buyer in connection with the Contract or breach of the Contract by the Buyer;

12.5.2  the storage, use or sale of the Goods by the Buyer or other act, omission or negligence of the Buyer in connection with the Goods (except where the Company is liable to the Buyer in accordance with these terms and conditions).

12.5.3 any claims brought or threatened against the Company by any third party in connection the Goods (except where the Company is liable in respect thereof in accordance with these terms and conditions).

 

  1. TERMINATION

13.1 The Contract will terminate immediately upon the happening of any one or more of the following events; the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or in the case of a partner, if the partnership shall be dissolved.

13.2 The Contract will terminate immediately upon service of written notice of termination by the Company on the Buyer on the happening of any one or more of the following; the Buyer suffers or allows any execution whether legal or equitable, or any distress or diligence to be levied on his/its property or obtained against him/it or his/its goods, or if any other legal process shall be threatened or commenced against him/it or his/its goods, or fails to observe or perform any of his/its obligations or duties under the Contract or any other contract between the Company and the Buyer or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.

13.3 The Company’s rights (but not the Buyer’s rights) shall continue beyond the discharge of the Buyer’s and the Company’s primary obligations under the Contract consequent upon its termination.

13.4 The termination of the Contract howsoever arising shall be without prejudice to the rights and duties of either the Buyer or the Company accrued prior to termination.

 

  1. GENERAL

14.1 Time for performance of all obligations of the Buyer is of the essence.

14.2 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.

14.3 Any provision of the Contract which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of the Contract and the remainder of such provision shall not be affected.

14.4 Failure by the Company to enforce or partially enforce any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

14.5 Company may assign, license or sub-contract all or any part of its rights or obligations under the Contract without the Buyer’s consent.

14.6 The Contract is personal to the Buyer who may not assign, license or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.

14.7 The formation, construction, performance, validity and all aspects of the Contract are governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.

 

  1. COMMUNICATION

15.1 All communications between the parties about this Contract must be in writing.

15.2 If sent by pre-paid first class post communications shall be deemed to have been received 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting).

15.3 When the Buyer uses the Company’s online store or sends e-mails to the Company, the Buyer is communicating electronically. The Company will communicate with the Buyer electronically in a variety of ways, such as by e-mail or by posting communications on the online store. For contractual purposes, the Buyer agrees that all agreements, notices, disclosures and other communications that the Company provides to it electronically satisfy any legal requirement that such communications be in writing, unless the law specifically requires a different form of communication.

15.4 E-mails to the Buyer will be sent to the e-mail address specified by the Buyer. The Buyer must provide the Company with a valid e-mail address and it is the Buyer’s responsibility to inform the Company of any changes to that address.

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