Last updated: 23rd December 2020
Standard Terms & Conditions
1. Acceptance of Orders; Basis of Contract. All quotes issued by Myonex Limited (the “Company”) shall be non-binding invitations for offers by the Customer and shall only remain valid for a period of 14 days. Any and all documents and information related to the quote or any advertising produced by Company (including, without limitation any pictures, drawings and product specifications) are for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Agreement (as defined below) nor have any contractual force. Any purchase order constitutes an offer by the Customer to purchase the Products in accordance with, and subject to, the terms and conditions herein (referred to herein as the “Conditions”). The Customer is responsible for ensuring that the terms of any such order and any applicable specification submitted by the Customer are complete and accurate. A binding contract, on and subject to these Conditions, shall be concluded upon the earlier of: (i) the Company’s written acceptance of the relevant purchase order; or (ii) dispatch of the ordered Products by the Company. The Company’s acceptance of any purchase order of Customer is expressly conditioned on the Customer’s assent to these Conditions and any and all other terms and conditions which the customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing are hereby excluded to the maximum extent permitted by law. For the avoidance of doubt, the Customer’s acceptance of Products and/or services from the Company shall constitute the Customer’s acceptance of, and willingness to be bound by, these Conditions. The contract formed pursuant to the terms of this paragraph shall consist of: (i) the purchase order; (ii) these Conditions; and (iii) quote, and shall be referred to herein as the “Agreement.” Services requested following finalization of this Agreement, or necessitated by a requested change in Products and/or services after finalization of this Agreement, will be billed at Company’s then standard rates, unless a lower price is set forth in this Agreement, or the Parties otherwise mutually agree to alternative pricing in writing. Insofar as Company has agreed with the Customer to deliver the Products by instalments, each instalment shall be deemed to be a separate contract between the parties. Any delay in delivery or defect in an instalment shall not entitle the customer to cancel any other instalment.
2. Payment Terms; Late Payments. Payment shall be net thirty (30) days from the date of invoice unless otherwise specified by the Company in writing. The Customer’s payment obligations are absolute, unconditional, and not subject to reduction, set-off, counterclaim, or delay. The Company reserves the right to demand full or partial payment in advance if the Company reasonably determines that the Customer’s ability to pay debts as they become due in the ordinary course of business has become materially impaired. If the Customer fails to make a payment due to the Company under the Agreement by the due date, then, without limiting any of the Company’s other rights or remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 6% per annum above the Bank of England’s base rate from time to time (but at 6% per annum for any period when that base rate is below 0%).
3. Delivery and Tender. Shipment terms will be EXW (Incoterms 2020), unless the Company expressly agrees to alternative terms in signed writing. The Customer shall be responsible for all shipping costs, insurance costs, customs and import/export duties and fees, value-added taxes, sales and use taxes, and/or other assessments on the delivery of products and/or goods (collectively referred to as “Products”). If Company consents in writing to Customer arranging for payment of insurance costs directly, as between the Parties, Company shall have no responsibility for any risk to Product that relate to transportation of such Products or insurance on such Products, and Customer assumes all risk with respect to transportation of such Products. Customer waives any and all claims of any type against Company, its employees, representatives and agents, including without limitation any insurance carrier of Company, relating to transportation of such Products. Unless definite shipping instructions are set forth in an accepted purchase order, the method of shipment and routing will be at the Company’s discretion. Risk in the Products shall transfer to the Customer at the time the Products leave the Company’s possession. The Customer shall bear the cost of any loss, deterioration or damage of the Products as may occur after risk in the Products has been transferred. Title to Products shall not pass to the Customer until the Company receives payment in full (in cash or cleared funds) for the Products. Until title to Products has passed to the Customer, the Customer shall: (i) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Products; (iii) maintain the Products in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks; (iv) on request the Customer shall allow the Supplier to inspect the Products. Shipping dates, where stated, are approximate and not guaranteed.
4. Customer’s Acceptance of Goods. The Customer shall promptly inspect all Products purchased hereunder for damages, defects, and/or non-compliance with any applicable specifications. The Customer shall be deemed to unconditionally accept all Products purchased hereunder and waive every claim from any cause, including without limitation claims under the limited warranties contained herein, unless the Customer provides notice of such claim in writing to the Company within fourteen (14) days of delivery. Company shall have thirty (30) days from the date of such notice to cure any damages, defects, or non-conformities. Customer’s sole and exclusive remedy for Company’s failure to cure such damages, defects, or nonconformities with specifications within thirty (30) days of receiving written notice shall be, at Company’s sole discretion: (a) replacement of any non-conforming Products; or (b) refund of the purchase price in respect of such non-conforming Products. Customer shall in good faith consider any request by Company for a reasonable extension of the thirty (30) day time period if Company provides good reason for same, such as, by way of example only, time periods necessary to clear imports into some countries that are outside of Europe. In the event of any disagreement regarding specifications of Products, the Parties will be guided by the Product manufacturer’s label and other supporting information provided by the manufacturer.
5. Customer Right to Terminate. Customer will have the right to terminate this Agreement without cause subject to Customer paying: (a) the purchase price for any Products shipped by Company at the time of cancellation, (b) as to any Products that have not been shipped by Company at the time of cancellation, the sum of: (i) Company’s anticipated profit on such Products, which shall be considered a lost-volume sale, (ii) any restocking fees and other out of pocket costs incurred by Company from third parties relating to the return or resale of any Products, (iii) a fee representing Company’s reasonable costs incurred relating to the return or resale of any Products purchased in reliance on the Purchase Order, and (iv) Company’s acquisition cost for any Products purchased in reliance on this Agreement that Company cannot return or resell through reasonable efforts; and, (c) with respect to any services, (i) the price for any services provided prior to the effective date of termination, (ii) any costs incurred by Company in reliance on this Agreement, which cannot be avoided through reasonable efforts, (iii) reasonable compensation for Company’s efforts to wind up and/or transition any services pending at the time of termination.
6. Company’s Remedies in the Event of Default. Company shall have the right, at its option, to terminate this Agreement immediately upon providing notice in writing upon the occurrence of a Default by the Customer. A “Default” includes, but is not limited to, any one or more of the following events: (i) failure to make payment when due; (ii) a material breach of any term or condition of this Agreement, including without limitation obligations regarding cancellation of any Product order; (iii) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (iv) the customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; (v) the Customer’s financial position deteriorates to such an extent that in our opinion the customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; (vi) the dissolution of the Customer as a going concern; or (vii) a sale, transfer, or exchange of substantially all of the assets or equity of the Customer without the prior written consent of the Company. In the event of a Default, the Company shall be entitled, in addition to any other rights or remedies permitted under the Agreement and by applicable law, to: withhold shipments, in whole or part; to recall Products in transit and retake same; to repossess all Products which may be stored by the Company for the Customer’s account; and to immediately terminate any services in process, in each case without the necessity of instituting any proceedings. The Customer consents that all Products that the Company elects, in the exercise of its discretion, to recall, retake, or repossess shall become the Company’s absolute property, provided that the Customer is given full credit therefor. Notwithstanding the foregoing, in the event that the Customer fails to perform any of its obligations hereunder, the Customer shall pay the Company all reasonably-incurred litigation and collection costs, including, but not limited to, payment of the Company’s attorneys’ fees. The Company’s rights as otherwise set forth in this Agreement are cumulative and in addition to any other rights the Company may have at law or in equity.
7. Limited Warranties. The Customer acknowledges and agrees that the Products that are the subject of this Agreement have been manufactured and supplied to the Company by third parties. The Company warrants that it will pass marketable title to the Products sold hereunder, which will be of the type and quantity described in this Agreement. All services will be performed by qualified personnel who will exercise reasonable care and comply with industry standards and all instructions set forth in an accepted work order.
The Company disclaims and negates any other warranties, either express or implied, including without limitation implied warranties of merchantability and fitness for a particular purpose. No oral or written information or advice given by company or its employees shall create a warranty or make any modification or addition to these warranties.
8. Limitation of Customer’s Remedies. Subject always to Condition 9, the sole and exclusive remedy of the Customer for a breach of this Agreement or of any warranty relating to the sale of goods shall be, at the Company’s sole discretion: (a) replacement of any non-conforming goods; or (b) a refund of the contract price. The sole and exclusive remedy of the Customer for a breach of this Agreement relating to the performance of services shall be, at the company’s sole discretion: (a) re-performance of the services; or (b) refund of the portion of the contract price corresponding to the non-conforming services. In no event shall company, its employees, affiliates, agents, assigns and/or successors be liable to the Customer, its parents, subsidiaries, affiliates, employees, agents, assigns and/or successors, and/or to any third party, for any and all damages arising from and/or in any way related to: (a) the late delivery of goods; (b) the unavailability of goods; and/or (c) any condition or characteristic of the goods that are the subject of this Agreement.
9. Limitation of Liability. Nothing in this Agreement limits or excludes the liability for either party for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or any other matter for which it would be unlawful for a party to exclude or limit or attempt to exclude or limit its liability.
The Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(a) loss of profit,
(b) loss of revenue;
(c) loss of goodwill;
(d) loss of opportunity;
(e) loss of contract;
(f) loss of anticipated savings;
(g) loss of reputation;
(h) wasted expenditure;
(i) loss of data; or
(j) any special, indirect or consequential loss,
and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, sub-Conditions (a)(i) above apply whether such damage or loss is direct, indirect, consequential or otherwise.
Subject always to the foregoing provisions of this Condition 9, each party’s total aggregate liability to the other party under this Agreement whether in contract, tort (including negligence), breach of statutory duty misrepresentation, restitution and/or otherwise howsoever arising under any legal theory whatsoever shall in all circumstances be limited to and shall not exceed: (a) for non-payment of any amounts due under this Agreement, the amount of the debt due (plus any interest due thereon for late payment plus all costs (including legal costs) incurred in recovering such sums); (b) for any other type of liability, a total sum equal to the total value of the Products and services provided under the Agreement, not to exceed two (2) million pounds sterling (£2,000,000).
10. Force Majeure. The Company shall not be liable for any non-delivery or delay in delivering any of the Products or performing any of the services hereunder, if such non-delivery, delay, or non-performance shall be due to causes beyond the Company’s control, including, without limitation, one or more of the following causes: acts of God; fires; floods; strikes; lockouts; labor disputes; epidemics and pandemics; accidents; delays in transportation; shortage of modes of transportation, labor, fuel or materials; utility outages; war blockades; embargoes; foreign or domestic governmental regulations or requirements; restraining orders or decrees of any court or judge; or any other causes whatsoever, whether similar or dissimilar to those enumerated above In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
11. Cost Increases and Currency Fluctuation. If, after the Company issues a quote or the Customer places a Product order or work order, (a) there is a material increase in the Company’s Product acquisition cost, or (b) the compensation to be received by Company is materially reduced by changes in currency exchange rates, the Company may, at its election: (i) terminate this Agreement in whole or in part without liability for any delay in the delivery of, or failure to deliver, the Products and/or services sold hereunder; or (ii) increase the Customer’s invoice in proportion to the increase in Company’s Product acquisition cost or the change in currency exchange rates.
12. Entire Agreement. If the parties have executed a master agreement which permits the use of purchase orders, that contract shall control in the event of any conflicts between it and this Agreement as well as any purchase orders or other communications provided by Customer. The terms and conditions of this Agreement constitute the entire agreement between the parties hereto and except as set forth above, supersede any and all prior or contemporaneous communications, representations or agreements, promises, assurances, warranties and understandings, either verbal or written, between the parties with respect to the subject matter hereof. Customer is not relying on any promises, statements, representations, or inducements other than those set forth herein and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
13. Customer’s Representations and Warranties. The Customer represents and warrants that: (i) all applications, statements and credit or financial information submitted to the Company are true and correct and made to induce the Company to enter into this Agreement; and (ii) it is solvent at the time of entering into this Agreement.
14. Confidentiality and Data Protection. The Company and the Customer, and their respective employees and agents, will during the term of this Agreement and for five (5) years thereafter maintain the confidentiality of all proprietary, non-public information, including technical know-how, pricing information, vendor information, supplier information, business strategies, disclosed by the other and will not use or disclose such information except in connection with performing their contractual obligations and/or as required by law, court order, or other legal process (“Confidential information”). Confidential information shall not include any information (i) that is in the public domain (other than through a breach of a party’s confidentiality obligations); (ii) that a party can demonstrate by written records that it already possessed prior to disclosure; (iii) that a party independently develops without reliance on the other party’s information or (iv) that a party can demonstrate by written records was disclosed to it by a third party. Upon the expiration or termination of this Agreement, or earlier upon written request of the disclosing party, the receiving party will deliver to the disclosing party all of the disclosing party’s Confidential Information that the receiving party has in its possession or control, except that the receiving party may retain a copy of such Confidential Information for archival purposes. Any electronic back-up tapes or other electronic back-up files that may have been created by the receiving party by automatic or routine archiving or back-up procedures shall not be subject to this Section. Any Confidential Information of the other party retained shall continue to be governed by the terms of this Section.
The parties acknowledge and agree that it is not anticipated that either party shall be required to process any personal data on behalf of the other party in connection with the Agreement. If any circumstances arise which require either party to process personal data on behalf of the other party as a data processor, the parties agree that before any personal data is shared they will first enter into a data processing agreement, which complies with the requirements of applicable data protection legislation (including, without limitation, the Data Protection Act 2018 and the GDPR) and the terms of the data processing agreement shall govern any such processing on behalf of the other party.
15. Non-Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. No course of dealing shall be, or be deemed, a waiver of any term or condition hereof.
16. Binding Effect; Assignability. These Conditions shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. As a matter of right, the Company may assign the obligations and benefits of the Company under this Agreement to any successor of the Company by way of reorganization, merger, consolidation, or liquidation, or to the purchaser of all or substantially all of its stock or assets. Upon said assignment, the obligations and benefits of the Company under this Agreement shall be binding and inure to the benefit of the assignees. Neither this Agreement nor any right, interest or obligation hereunder may be assigned, voluntarily transferred, delegated, or transferred by operation of law by the Customer without the prior written consent of Company.
17. Time of Claims. The Customer expressly waives any applicable statutes of limitations and agrees that any legal proceeding relating to the Products and/or services provided pursuant to this Agreement, including without limitation any claim for breach of the Agreement, shall be waived unless filed within one (1) year after the accrual of such cause of action.
18. Choice of Law; Personal Jurisdiction and Choice of Venue; Invalidity; Modification. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law: (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. This Agreement cannot be amended, supplemented or waived, in whole or in part, except by a written instrument duly executed by authorized representatives of the parties, which specifically references the parties’ intent to modify the Agreement.
19. No Benefit to Third Parties. The representations, warranties, covenants and agreements set forth in this Agreement are for the sole benefit of the Parties hereto and their successors and permitted assigns, and they will not be construed as conferring any rights on any other persons to enforce any term of the Agreement, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
20. Compliance with Laws. Company and Customer will comply with all applicable laws that govern the performance of their respective obligations under this Agreement.
21. Anti-Bribery and Corruption. The Customer shall: (a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including, but not limited to, the Bribery Act 2010 (“Relevant Requirements”); (b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; (d) notify the Company (in writing) if it becomes aware of any breach of this Condition 21, or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage in connection with the performance of this Agreement; (f) immediately notify the Company (in writing) if a foreign public official becomes an officer or employee of the Customer or acquires a direct or indirect interest in the Customer and the Customer warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this Agreement). Breach of this Condition 21 shall be deemed a material breach under Condition 6. For the purpose of this Condition 21, 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.
22. Notices. Any formal notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the relevant address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.