Mackenzie Holdings Ltd also trading as office121 (a company incorporated under the Companies Acts) Company Number SC110218 and having its registered office at 63 Kenneth Street, Stornoway, HS1 2DS (hereinafter called "the Seller")


1. Definitions

"the Buyer" means the person so described in the Order. "Contract" means the contract for the sale and purchase of the Products between the Buyer and the Seller. "Products" means the Products (including any instalment of the Products or any part of them) described in the Order. means the Buyer's purchase order for Products. "Price" means the price of the Products but is exclusive of carriage, insurance, delivery costs and any value added tax or any other indirect tax or duty unless specifically detailed in writing.

2. Applicability of Conditions

2.1 These Conditions shall be deemed to be incorporated in and shall govern all Contracts between the Seller and the Buyer.

2.2 These Conditions shall prevail over and having effect notwithstanding and to the exclusion of any terms, conditions and/or provisions which may conflict with or be in any way at variance with these Conditions and which the Buyer may seek to establish as forming part of or as applicable to the Contracts whether by having brought the same to the notice of the Seller by being implied by any trade, custom or practice, course of dealing or otherwise.

2.3 No waiver, alteration or modification of or addition to any of the provisions of these Conditions shall have any effect or be binding upon the Seller unless the same shall be in writing and signed by a director of the Seller

3. Acceptance of Order

3.1 Orders are submitted only upon and subject to the written conditions (if any) specified by the Seller in relation to the Products in question and these Conditions.

3.2 All Orders must be in writing and the Buyer shall be responsible for ensuring the accuracy of each Order

3.3 No Order shall be binding upon the Seller unless expressly accepted in writing by an officer of the Seller or by an employee of the Seller with actual authority to accept such Order.

3.4 The Buyer may not unless the Seller has given its prior written agreement, withdraw, cancel, defer or amend any Order placed or any Contract. Where such consent is given it is an express condition thereof that the Seller shall be reimbursed for all materials, labour costs and liabilities incurred by it for the purposes of that contract prior to cancellation together with a reasonable addition thereto in respect of the loss of profit.

4. Prices

4.1 Unless previously withdrawn the Seller's quotation expires twenty-eight days after the date thereof. No quotation made by the Seller constitutes an offer and any quotation may be withdrawn or revised at any time prior to acceptance by the Seller of the Order in terms of clause 3.3 hereof. In the absence of a valid quotation or an agreed price, the Price for the Products shall be calculated in accordance with the Seller's price list current at the date of acceptance of the Order.

4.2 Prices quoted by the Seller for Products are subject to variation and may be increased at any time without notice prior to delivery for any reason (but without prejudice to the generality of the foregoing) to cover foreign exchange fluctuation or variations in the cost of materials, labour or other costs of manufacture or through changes of design, delivery dates or quantities requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions. When Products comprised in an Order are despatched or provided in more than one consignment the Price of the Products comprised in each consignment will be the Price ruling at the date of actual despatch or provision of that consignment.

4.3 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Products, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.

5. Delivery and/or Provision
 
5.1 Any date suggested by the Seller for delivery of Products is a guide only and time of delivery and/or time of provision is not of the essence. The Seller shall incur no liability whatsoever in respect of any loss or damage arising as a consequence of any deviation from the timetable (if any) agreed between the Buyer and the Seller.

5.2 Delivery of the Products shall be made by the Buyer collecting the Products at the Seller's premises unless otherwise stipulated or agreed by the Seller. Should the Seller arrange onward delivery of the Products it shall do so as the Buyer's agent and the Buyer shall indemnify the Seller on demand in respect of all costs and expenses incurred thereby.

6. Shortages, Damage and/or Loss in Transit

6.1 The Buyer must:-
(i) examine any Products delivered upon delivery;
(ii) notify the Seller in writing within 3 days of any shortage of, or damage to the Products and in the event of non-delivery within 7 days of the estimated delivery date; and
(iii) afford the Seller and/or its agents reasonable opportunity to verify any shortage and/or inspect any damaged Products as delivered.

6.2(a) If the Buyer complies with all of sub-clauses 6.1 (i) - (iii) above inclusive, the Buyer's sole remedy in the event of any non-delivery, non-conformance, shortfall or shortage shall in the Seller's sole discretion be repair, replacement, rectification or re-provision by the Seller of the relevant Products.

6.2(b) If the Buyer fails to comply with all or any of sub-clauses 6.1 (i)- (iii) above inclusive, the Seller shall not be liable for any such non-delivery, non-conformance, shortfall or shortage and the Buyer may not reject such Products

6.3 The Seller may deliver Products in instalments and each such instalment shall be deemed to be the subject of a separate Contract and no damage, non-delivery or shortage in relation to any such instalment shall entitle the Buyer to any remedies in relation to any other instalment or Contract.

7. Risk

7.1 In all cases where delivery takes effect at the Seller's premises, risk in the Products will pass on the earlier of delivery to the Buyer or the Buyer's carrier or agent. If the Buyer is provided with written notification of a delivery date and the Buyer fails to take delivery of the Products on such date, the risk in the Products will nonetheless pass to the Buyer at the scheduled time of delivery and the Buyer shall reimburse the Seller on demand in respect of all reasonable storage and other costs incurred by the Seller until the Buyer takes delivery of the Products.

7.2 If the Seller agrees in writing that Products are to be delivered to an address other than that of the Seller, risk in the Products will pass upon consignment of the Products to the Seller's carrier or agent. For the avoidance of doubt, the Seller shall be under no duty to insure the Products.

7.3 The Buyer shall insure the Products from the period from which risk in the Products passes until the passing of title in the Products to the Buyer as detailed in clause 9 below for the full replacement value and the Buyer shall until sums due have been paid in full or in cleared funds, hold the insurance policy and any proceeds thereunder in trust for the Seller to the extent of the unpaid sums.

8. Property

8.1 The property in any Products supplied by the Seller shall not pass to the Buyer until such time as the Seller is in actual receipt of the full amount due in respect thereof in cash or in cleared funds.

8.2 Until such payment, the Buyer will have possession of the Products as trustee for the Seller and will ensure that the Products are properly stored, protected and insured and remain clearly identifiable as the property of the Seller and in the Buyer's possession or control.

8.3 the Seller reserves the right to repossess any Products in respect of which payment is overdue and thereafter to resell same and for this purpose, the Buyer grants to the Seller and its agents the right to enter upon the Buyer's premises during normal business hours.

8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8.5 If the Buyer is situated outwith Scotland, the proceeds of any sale by the Buyer to a third party shall be held by the Buyer in trust for the Seller and the Seller shall be entitled to trace such proceeds in the hands of the Buyer or any Trustee, Receiver or Liquidator of the Buyer.

9. Liabilities

9.1 All guarantees, warranties and assurances whether express or implied are hereby excluded to the fullest extent permitted by law.

9.2 The Seller's aggregate liability in respect of any occurrence or series of occurrences to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed £1,000,000. This limit of liability is determined on the basis of the Seller's insurance cover. The Buyer may by written notice to the Seller request the Seller to agree a higher limit of liability provided insurance cover can be obtained therefor. The premiums in respect of insurance up to such higher limit will be for the account of the Buyer.

9.3 The Seller shall not be liable for any indirect or consequential loss, claims, damages or liabilities or loss of profit whatsoever even if advised of the possibility of same.

9.4 Nothing in these Conditions shall exclude, restrict or limit any liability of the Seller [before the end of the month following the month in which the Products were ordered] in relation to the Products to be provided by the Seller in relation to death or personal injury arising from the negligence of the Seller

10. Payment

10.1 Unless otherwise stated payment is to be made in full without deduction or set-off before the end of the month following the date of the Seller's invoice. Time shall be of the essence for such payment.

10.2 In the case of Products manufactured and/or delivered in instalments or stages, payment in respect of each instalment or stage shall be made prior to commencement of any work by the Seller in respect of the next stage or instalment.

10.3 Without prejudice to the Seller's whole other rights and remedies, the Seller shall be entitled to charge the Buyer interest on any late payments at the greater of the rate of 4% per annum above the base rate from time to time of [The Bank of Scotland plc] and the amount prescribed by The Late Payment of Commercial Debts (Interest) Act 1998 on the whole amount of any late payment until payment in full.

11. Force Majeure

11.1 The Seller shall have the right to cancel or delay delivery or provision or to reduce the quantity of Products delivered and shall under no circumstances be responsible for failure or delay in performing the Contract or otherwise failing to implement its obligations to the Buyer if such failure or delay shall be due to any cause or circumstance beyond the control of the Seller or for a reason attributable to the Buyer or the Buyer's customers or agents.

11.2 If such circumstances continue for a continuous period in excess of 60 day, the Seller shall be entitled but not obliged to terminate the Contract upon prior written notice to the Buyer and without any liability to the Buyer.

12. Termination

Without prejudice to any other rights which the Seller may have, the Seller reserves the right to suspend further deliveries of Products and/or, by notice in writing to the Buyer, terminate the Contract if:

(a) the Buyer breaches any of these Conditions and in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.

(b) the Buyer shall commit any act of bankruptcy or shall suffer any execution or distress to be levied on his Products or (being a company) shall enter into liquidation (whether compulsory or voluntary, save for the purposes of and followed by reconstruction or amalgamation) or shall have a receiver or administrator appointed, or enters into a trust deed for the benefit of its creditors, becomes insolvent or compounds with its creditors or ceases to trade or takes or suffers an analogous action or proceedings under the law of any other jurisdiction.

13. Notices

13.1 Any notice required to be given by either the Seller or the Buyer to the other shall be deemed validly served as served by:

(i) Prepaid registered letter posted to the address for the recipient given herein or such other address as may from time to time be notified in writing for this purpose; or
(ii) Personal delivery by hand; or
(iii) (if appropriate) by facsimile machine during normal business hours.
13.2 Any notice served in terms of clause 13.1 above shall be deemed to have been served:-
(a) in the case of (i) above, 48 hours after posting same; and
(b) in the case of (ii) above upon delivery; and
(c) in the case of (iii) above when sent.

14. Data Protection

The Seller shall process personal data about the Buyer and/or about the Buyer's employees in accordance with current data protection laws. The Seller shall use the personal data that it obtains during the course of his relationship with the Buyer for the purposes of completing any contract with the Buyer and for administering the business relationship. The Buyer will also use the personal data to detect and prevent fraud, to recover debts and to check credit ratings of customers (all of which may involve a disclosure either to a credit reference company, to a financial or other organisation involved in fraud prevention or to legal agents). The Buyer will also use the personal data for the purposes of direct marketing. The Seller may sell or otherwise share your personal data with a third party. If you do not want the Seller to use your personal data for the purpose of direct marketing then please write to the Seller at the address above requesting that they stop.

15. General

15.1 The Buyer shall not assign, subcontract or otherwise transfer any of its rights or obligations under the Contract.

15.2 Nothing in these Conditions shall limit the ability of the Seller to subcontract all or any of its obligations under the Contract.

15.3 The Seller may assign all or any of its rights and obligations under the Contract to any other company which is from time to time a subsidiary of the Seller or holding company of the Seller or a subsidiary of such holding company, "subsidiary" and "holding company" having the meanings assigned to them by Section 736 of The Companies Act 1985 as amended.

15.4 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

15.5 If any provision in these Conditions is found to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

15.6 The provisions of clauses 8, 9, 10, 11, 12, 13 and 15 hereof will survive the expiry or earlier termination of the Contract.

16. Governing Law

All contracts governed by these conditions are subject to Scots law. The parties hereby submit to the exclusive jurisdiction of the Scottish Courts.