1. SOLE CONDITIONS
1.1 Unless and to such extent as may be agreed in writing by Multitone Electronics PLC (“Multitone”), these Conditions are the sole Conditions on which Multitone contract with the Buyer in relation to the provision of equipment by Multitone to the Buyer to the exclusion of any terms or conditions stipulated by the Buyer or implied by trade custom, practice or course of dealings and of any representations, warranties or communications not expressly incorporated herein.
1.2 Variations to these Conditions shall only be effective if agreed in writing and signed by the parties.
2. QUOTATIONS AND ORDERS
2.1 A quotation by Multitone does not constitute an offer. Multitone reserves the right to withdraw or revise a quotation at any time prior to Multitone’s acceptance of the Buyer’s order.
2.2 The Buyer’s Order will not result in a binding contract of sale unless and until accepted in writing by Multitone.
2.3 Unless otherwise agreed in writing by Multitone, each order when accepted shall constitute a separate contract of sale.
2.4 All references to the Equipment in these Conditions shall refer to the equipment contained in the Buyer’s order which is accepted in writing by Multitone.
3.1 The price accepted in writing by Multitone shall be the contract price (“the Contract Price”). Unless otherwise stated by Multitone in its quotation or other written document, the Contract Price includes the cost of delivery of the Equipment within the United Kingdom by the method selected by Multitone. Additional costs, charges and expenses incurred by Multitone in accommodating any request by the Buyer for other methods of delivery or for any special form of packaging, insurance or other arrangements not normally provided by Multitone may be charged extra to the Buyer. For the purpose of these Conditions, additional costs, charges and expenses incurred by Multitone shall include costs, charges and expenses in respect of wasted time, work and materials.
3.2 Multitone’s quotation is based on information and data regarding local conditions supplied by the Buyer to Multitone in writing for the purpose of quoting and in particular but without limitation the Contract Price includes (where appropriate) the Equipment which will give radio coverage only for such area and premises and structures therein as are specifically mentioned in the quotation. If Multitone encounters any conditions or obstructions not disclosed by the Buyer in writing prior to issue of its quotation, Multitone shall not be obliged to overcome such conditions or obstructions but if it agrees 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 Buyer. The Buyer shall remain liable to pay the Contract Price if the conditions or obstructions not disclosed by the Buyer in writing prior to the issue of Multitone’s quotation are not overcome.
3.3 Additional costs, charges and expenses incurred by Multitone as a result of any alteration which Multitone agrees to make to quantities, delivery, or dates, periods or as a result of changes in specifications or modifications to any of the Equipment whether for the purposes of connection to equipment not supplied by Multitone or otherwise, or where the Equipment includes items manufactured by third parties which the Buyer has requested, in modifying such items so as to render them compatible with equipment will be charged to the Buyer as will all costs, charges and expenses incurred by Multitone in connection with installation, testing, commissioning and other work performed by Multitone unless Multitone state in writing that such work is included in the Contract Price.
3.4 Unless otherwise specified VAT and any other tax or duty payable by the Buyer shall be added to the Contract Price.
3.5 Unless otherwise agreed the costs of complying with the Waste Electrical and Electronic Equipment Directive (WEEE) shall be charged to the Buyer in the form of a levy which may be varied without notice
4. TERMS OF PAYMENT
4.1 That part of the Contract Price referable to Multitone’s charges for the sale and delivery of any item of the Equipment will be invoiced upon despatch of such item from Multitone’s premises. All other charges will be invoiced 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 Condition shall take effect subject to any other payment schedule specified by Multitone in its quotation or other written document including in particular (but without limitation) a schedule providing for payments to be made with the Buyer’s order and upon the issue by Multitone of invoices at other times prior to delivery of the Equipment.
4.2 Save as may be provided elsewhere in these Conditions, payment shall be made in full within 30 days of the date of each invoice (“the due date”) notwithstanding that any delivery, installation or other obligations whatsoever of Multitone remain outstanding. Time of payment is of the essence. Multitone reserves the right to charge interest (as well as before any judgement) at the rate of 8 per cent per annum above the base rate from time to time in force of The Bank of England in respect of any outstanding indebtedness from the due date to the date when payment is received by Multitone (such interest accruing on a daily basis and being payable without any deductions whatsoever) and to appropriate any payment made by the Buyer to such of the Equipment (or any other equipment supplied to the Buyer under any other contract) as Multitone considers fit notwithstanding any purported appropriation by the Buyer.
4.3 In addition and without prejudice to Condition 4.2 and Condition 15.2, Multitone reserves the right to cease all services in relation to the Equipment should there be any outstanding indebtedness under any contract between the Buyer and Multitone.
4.4 If, in the opinion of Multitone, the credit-
4.5 Multitone may offset any amount owing to it from the Buyer against any amount owed to the Buyer by Multitone.
5.1 All delivery and other dates or periods are given in good faith but shall be treated as estimates only in respect of which time shall not be of the essence and may not be made of the essence by the service of any notice (unless Multitone has expressly undertaken in writing to guarantee delivery by a specified date) and Multitone shall not be liable for the consequences of any delay whatsoever.
5.2 The Buyer shall at Multitone’s option accept part shipments or delivery of the Equipment.
5.3 Multitone shall not be liable for shortage or loss or damage to any of the Equipment unless the Equipment is examined on delivery and the Buyer notifies both the carrier and Multitone of such shortage, loss or damage by telephone within 3 days of delivery and confirms the position in writing to both the carrier and Multitone within 7 days of delivery.
5.4 If the Buyer fails to take delivery of the Equipment or any items thereof when tendered or delivery of the Equipment is delayed for reasons attributable to the Buyer, 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 and the Equipment will be at the Buyer’s sole risk from the date of commencement of such failure to take delivery or delay, as the case may be.
5.5 Where the Equipment is to be delivered by instalments or schedule deliveries each delivery shall constitute a separate contract and a failure on Multitone’s part to deliver any one or more of the instalments or deliveries shall not entitle the Buyer to refuse to accept delivery of the other instalment(s) or deliveries.
6. INSTALLATION, COMMISSIONING AND ACCEPTANCE
Where Multitone’s quotation provides that the Equipment is to be installed, commissioned and subject to acceptance testing the details in relation to these (including the dates by which they should be achieved) shall be included in a project plan which the Buyer and Multitone shall agree as soon as reasonable after acceptance by Multitone of the Buyer’s Order. Time shall not be of the essence in relation to these dates.
7. PASSING OF PROPERTY AND RISK
7.1 The risk of loss or damage to any item of the Equipment shall pass to the Buyer when delivery thereof is made or tendered.
7.2 All the Equipment shall remain the sole property of Multitone as legal and equitable owner until Multitone has received in cash or cleared funds payment in full of all amounts owing to Multitone by the Buyer on any account whatsoever.
7.3 So long as the Equipment remains Multitone’s property, the Buyer shall hold the Equipment as Multitone’s bailee and shall keep the same at the expense of the Buyer, separate from the equipment of the Buyer and of third parties and properly stored, protected and insured and clearly identifiable as Multitone’s property. All sums received from any insurance claim made in respect of loss of or damage to the Equipment shall be treated as if they were proceeds of sale and held by the Buyer on terms identical to those set out in clause 7.2. The Buyer shall also hold on trust for Multitone and, if required to do so by Multitone, forthwith assign to it, the benefit of any insurance claim in respect of the Equipment.
7.4 So long as the Equipment remains Multitone’s property and where any of the events listed in clause 14.1 have occurred or where any payment owed by the Buyer to Multitone on any account is overdue, Multitone may at any time require the Buyer to deliver up the Equipment to Multitone and, if the Buyer fails to do so forthwith, to recover and resell the Equipment if payment therefore is overdue and for this purpose the Buyer hereby expressly authorises Multitone, its employees or agents to enter upon the Buyer’s or other premises upon which the Equipment is situated and recover the same.
7.5 So long as the Equipment remains Multitone’s property, the Buyer shall ensure that the Equipment does not become subject to any charge, lien or encumbrance but if the Buyer does so all monies owing to Multitone by the Buyer shall (without prejudice to any other right or remedy which Multitone may have) forthwith become due and payable.
7.6 The Buyer shall not modify or change any of the Equipment without the prior written approval of Multitone.
8. WARRANTIES AND LIABILITIES
8.1 Subject to Conditions 8.3 and 8.4 and to Condition 5.3, any item of the Equipment supplied by Multitone (excluding consumable items) which contains defects of materials or workmanship will be replaced or repaired free of charge at the option of Multitone provided that:
8.2 such defects are notified to Multitone in writing within 12 months after the date of delivery (where the Equipment item is not subject to installation, commissioning and acceptance) or within 12 months after satisfactory acceptance testing in accordance with the provisions of the project plan referred to in clause 6) (where the Equipment item is subject to installation, commissioning and acceptance);
8.3 the Buyer, if so requested, returns the Equipment securely packed, carriage paid to a designated service centre together with sufficient details in writing to enable the Equipment and the alleged defects to be identified;
8.4 the environmental conditions and operational and maintenance instructions prescribed by Multitone have been strictly observed and complied with and the Equipment has not been used for any purpose other than for which it is intended, damaged as a result of accident, neglect, misuse or any other improper use or treatment;
8.5 repairs, alterations or modifications have not been made or attempted by anyone other than Multitone or its authorised agent;
8.6 the Equipment is not improperly stored or handled, exposed to weather elements where not so intended, abused, operated or maintained contrary to Multitone’s or manufacturer’s instructions, or are modified by or on behalf of the Buyer.
8.7 The foregoing states Multitone’s sole liability and the Buyer’s sole remedy in relation to the Equipment defects.
8.8 Where Multitone is not obliged to replace or repair the Equipment item returned by the Buyer, it may at its sole discretion and without prior notice to the Buyer repair or replace the same and charge to the Buyer all labour, replacement parts [and Equipment] and incidental expenses.
8.9 Performance ratings, 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 of any Equipment item to attain any performance ratings given to the Buyer.
8.10 Under no circumstances will Multitone be liable for the repair or replacement of batteries.
8.11 Although all reasonable care is taken to recommend the use of appropriate components and to advise and assist in connection with their correct installation, Multitone cannot accept any liability howsoever arising for the malfunctioning of these components after delivery or installation or for any consequential loss, injury or damage which may result from their use unless resulting from the negligence of Multitone.
9.1 Multitone does not seek to limit its liability for death or personal injury resulting directly from the negligence of Multitone nor to limit its liability for breach of the obligations arising from Section 12 of the Sale of Goods Act 1979 but subject thereto:
9.1.1 Multitone’s liability under the terms of these Conditions shall be in lieu and to the exclusion of all other warranties, conditions or obligations imposed or implied by statute, regulation, directive, common law or otherwise;
9.1.2 Multitone shall not be liable for any indirect or consequential loss or damage howsoever arising including (without limitation) loss of profits or anticipated savings loss of contracts or loss by reason of plant shut-
9.1.3 Multitone’s total liability whether in contract or otherwise and whether for loss or damage resulting from negligence or otherwise shall not exceed in aggregate the price paid by the Buyer for the Equipment or £500,000.00, whichever is the greater.
9.2 In this clause 9.2:
“electromagnetic disturbance” means any electromagnetic phenomenon which is liable to degrade the performance of electrical apparatus. For example, “electromagnetic disturbance” will include, but not be limited to, electromagnetic noise, unwanted signals and changes in the propagation medium. For the purpose of this definition, electrical apparatus shall be taken to be degraded if any of the following types of interference with its function occur, namely permanent, temporary or intermittent, i.e. total loss of function; or significant impairment of function; or in the case of information storage or retrieval Equipment, destruction or corruption of information stored by it.
“Multitone products” means products supplied by Multitone; and
“Other apparatus or systems” means apparatus or systems (including cabling) not supplied by Multitone.
9.2.1 Unless otherwise expressly agreed by Multitone, the Buyer shall be responsible for ensuring that the electromagnetic environment in which Multitone products are to be installed and the installation of which they form part shall be such that no electromagnetic disturbance shall be caused by or to such products or installation.
9.2.2 Multitone does not accept liability for loss, damage, injury or consequence resulting directly or indirectly from electromagnetic disturbance caused to Multitone products by other apparatus or systems; or as the result of the electromagnetic environment in which Multitone products are installed.
9.2.3 In addition, Multitone cannot accept liability for loss, damage, injury or consequence resulting directly or indirectly from electromagnetic disturbance caused to other apparatus or systems by Multitone products; or by the installation, of which such Multitone products form part.
9.2.5 Without limiting the provisions of sub-
10. FORCE MAJEURE
10.1 For the purposes of this contract, Force Majeure Event, means an event beyond the reasonable control of Multitone including but not limited to strikes, lock-
10.2 Multitone shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this contract as a result of a Force Majeure Event.
10.3 If the Force Majeure Event prevents Multitone from fulfilling any of its obligations under this contract for more than four weeks, Multitone shall, without limiting its other rights or remedies, have the right to terminate the contract immediately by giving notice to the Buyer.
11. BUYER’S RESPONSIBILITIES
11.1 The Buyer shall at its own cost and expense promptly:
11.1.1 obtain and pay for and give Multitone such details as Multitone may reasonably require of all radio frequencies, licences, authorities, wayleaves and consents necessary in relation to the Equipment and its manufacture, 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 the Equipment on land belonging to third parties). In the event of any refusal or withdrawal of any such licence, authority, wayleave or consent the Buyer shall duly pay all of Multitone’s invoices in accordance with Condition 4;
11.1.2 allow Multitone during its normal working hours free and unhindered access to all relevant sites and structures
11.1.3 give Multitone all such technical and other information and assistance as it may reasonably require; and
11.1.4 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.
11.2 Due performance by the Buyer of its obligations set out in clause 10 shall be a condition precedent to further performance by Multitone of its obligations and (but without prejudice to any other rights it may have) Multitone shall be entitled to charge the Buyer all additional costs, charges and expenses incurred by Multitone as a result of any default by the Buyer.
12.1 The Buyer shall indemnify Multitone from and against all costs, expenses, liabilities and losses (including but not limited to any direct, indirect or consequential losses and loss of profit) whatsoever suffered or incurred by Multitone arising out of or in connection with any claim, demand or proceedings made or brought against Multitone:
12.2 by any third party as a result of the Buyer’s use of the Equipment unless such claims, demands or proceedings arise as a direct result of the negligence, breach of contract or breach of statutory duty by Multitone, its employees or agents; and
12.3 in respect of any infringement or alleged infringement or use or alleged use of any patent or other intellectual property rights (whether in the United Kingdom or otherwise) for which Multitone may become liable through compliance with the Buyer’s order in implementing the Buyer’s designs, plans or specifications or applying any marking or branding to the Equipment at the Buyer’s request.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 All intellectual property rights in the Equipment and in all materials prepared by or on behalf of Multitone to enable Multitone to deliver the Equipment pursuant to any Buyer’s order shall remain vested in Multitone (or such third party as Multitone may notify to the Buyer) and the Buyer shall not acquire any proprietary interest whatsoever in such intellectual property rights.
13.2 Multitone hereby grants to the Buyer a personal, non-
13.3 If at any time it is alleged that the Equipment infringes the intellectual property rights of any third party or if, in Multitone’s reasonable opinion, such an allegation is likely to be made, Multitone, may at its option and at its own expense:
13.3.1 modify or replace the Equipment without detracting from the overall performance of the Equipment, so as to avoid the infringement; or
13.3.2 procure for the Buyer the right to continue to use the Equipment; or
13.3.3 repurchase the Equipment at the price paid by the Buyer less depreciation at the rate Multitone applies to its own Equipment.
13.4 The Buyer shall notify Multitone immediately of any claim made or action brought or threatened alleging infringement of the rights of any third party. Multitone shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance as Multitone may request. The cost of any such proceedings shall be borne in such proportions as the parties shall agree, or in default of an agreement shared equally.
14. USE OF INFORMATION – CONFIDENTIALITY AND ADVERTISEMENT
14.1 All information supplied by Multitone shall be treated as confidential and shall not be disclosed or used other than to satisfy the requirements of the Buyer’s order unless the information is or comes into the public domain otherwise than by breach of this Condition 13.1. Similarly, any written material or drawings supplied by Multitone to the Buyer shall remain subject to Multitone’s copyright and shall not be copied or used for any purpose other than satisfying the requirements of the Buyer’s order. The Buyer shall promptly return, when requested by Multitone, all written material and drawings supplied.
14.2 The Buyer shall not, without Multitone’s prior written consent, use Multitone’s name for any marketing purposes nor use or exhibit any Multitone equipment or materials for marketing purposes.
15.1 Without affecting any other right or remedy available to it, Multitone may terminate any contract entered into as referred to in Condition 2.3 with immediate effect by giving written notice to the Buyer if:
15.1.1 the Buyer fails to pay any amount due under this contract or any other contract with Multitone on the due date for payment; or the Buyer commits any breach of any other term of the contract or any other contract with Multitone;
15.1.2 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual is deemed either unable to pay its debts or having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
15.1.3 the Buyer commences negotiations with all or any class of 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 (being a company) for the sole purpose of a scheme for a solvent management amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
15.1.4 a petition is filed, a notice is given a resolution is passed or an order is made, for or in connection with the winding up of the Buyer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more companies or the solvent reconstruction of the Buyer:
15.1.5 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 (being a company);
15.1.6 the holder of a qualifying floating charge over the assets of the Buyer (being a company) has become entitled to appoint or has appointed an administrative receiver;
15.1.7 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;
15.1.8 a creditor or encumbrancer 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 of any part of the Buyer’s assets and such attachment or process is not discharged within 14 days; or
15.1.9 the Buyer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.2 Without limiting its other rights or remedies, Multitone may suspend the supply of services or all further deliveries of the Equipment under the contract or any other contract between the Buyer and Multitone if the Buyer fails to pay any amount due under this contract on the due date for payment, the Buyer becomes subject to any of the events listed in Condition 14.1.1 to Condition 14.1.9, or Multitone reasonably believes that the Buyer is about to become subject to any of them.
15.3 On termination of the contract for any reason:
15.3.1 the Buyer shall immediately pay to Multitone all of Multitone’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has yet been submitted, Multitone shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
15.3.2 the Buyer shall return all of the Equipment which has not been fully paid for. If the Buyer fails to do so, then Multitone may exercise its rights under Condition 7.4;
15.3.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination or expiry; and
15.3.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Unless otherwise agreed by Multitone in writing the full Contract Price is payable by the Buyer following acceptance by Multitone of the Buyer’s order and no reduction shall be permitted in the event of any cancellation by the Buyer.
17. USE OF EQUIPMENT
It is the Buyer’s responsibility to ensure that proper standards of safety are maintained in relation to the use of the Equipment and to pass on all instructions regarding such use to its personnel and to arrange for their proper training in such use. This obligation shall extend to taking all reasonable steps to ensure compliance with the Health and Safety at Work Act 1974 and related regulations in the event of sale on or other supply by the Buyer.
In addition and without prejudice to Condition 4.2, Multitone shall have a general lien on any goods of the Buyer in its possession for any monies whatsoever due from the Buyer to Multitone. If monies are not paid when due Multitone may, in its absolute discretion, sell the goods and apply the proceeds towards the monies due and the expenses of the sale and shall upon accounting to the Buyer for the balance, if any, be fully and effectually discharged from all liability whatsoever in respect of the goods.
Any notice to be given hereunder shall be given by post, facsimile or telex to the recipient at his or its principal or registered office and shall be deemed to have been properly served at the time when in the ordinary course of post or transmission such notice would reach its destination.
20. GOVERNING LAW AND JURISDICTION
These Conditions shall be governed by and construed in all respects in accordance with English Law and the parties submit themselves irrevocably to the exclusive jurisdiction of the English Courts.