The following words shall have the meanings given them below throughout these conditions of supply: ‘Catalogue’ – the catalogue (in whatever form, whether paper or electronic) in which these Conditions are set out. ‘Company’ –MSolutions, a company (Company number 515479459) whose registered office is situated at 27 Haharoshet street, Ra’anana Israel. ‘Conditions’ – these terms and conditions. ‘Contract’ – any contract between us and you for the sale of Goods and/or the supply of Services. ‘Customer’- the person(s), company or other entity whose order for Goods or Services is accepted by the Company. ‘Goods’ – any goods supplied or to be supplied by us to you. ‘Services’ – any services supplied or to be supplied by us to you. ‘Supplies’ – any Goods or Services. ‘In writing’ – includes electronic communications.
All orders are accepted by the Company subject to and in accordance with these Conditions. These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer’s standard terms and conditions. If there is any conflict between • the other provisions of this Catalogue and these Conditions; or • the provisions of the order and these Conditions these Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorized in writing by a director of the Company.
Unless otherwise stated, prices for Supplies are in US $, exclusive of VAT, which will, if appropriate, be added at the time of dispatch to the price stated in the Catalogue or, where appropriate, the Company’s written quotation. The Company has used all reasonable endeavors to ensure that prices for the Supplies are accurately set out in the Catalogue but reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted. For shipments to another EC member state, VAT will not be charged, providing an EC VAT number is supplied by the consignee of the Goods at the time of ordering. Supplies to a non EC member state will be zero rated for VAT purposes in accordance with Customs. The Company’s standard documentation is a single invoice and dispatch note. The cost of other documents such as Chamber of Commerce or Consular certification or legalization or multiple invoice copies is not included unless specified on the Company’s quotation or pro-forma invoice and the Company will quote separately for such charges if requested.
Payment must be made in full in advance by one of the following methods, as agreed with the Company: a) in the currency invoiced. b) By bankers draft with order, drawn on a bank recognized by the Company in Israel. c) By net interbank transfer, for the purposes of which the Company’s bank details are available upon request. d) By Access/Visa credit cards. e) By letter of credit, providing that the price of the Goods (excluding delivery and other charges and duties) is over $7500 and the letter of credit: 1. is IRREVOCABLE. 2. Is confirmed by a reputable Bank, acceptable to the Company, in Israel. 3. Allows the Company payment at sight in US $. 4. Conforms exactly in detail as to price, description, dispatch method etc., given in the Company’s quotation or pro-forma invoice. 5. States that all Bank charges, commissions etc. are to the account of the Customer. 6. Allows both part shipment and trans-shipment. 7. Allows the Company a reasonable time, both for dispatch of Goods and the preparation and presentation of documents. 8. specifies ‘Various Origins’ if country of origin must be shown in the letter of credit. 9. Is subject to the Uniform Customs and Practice for Documentary Credits (1983 Revision ICC Publication No. 400) as the same may be amended from time to time. f) In accordance with any credit terms account made available by the Company in connection with the Customer’s account in accordance with these Conditions. Please note that the Company will not accept any bank charges, commissions or fees. All documentary credits must clearly be marked that all such charges or commissions are for the account of the Customer. All payments must be made without any deductions, withholding or set off. Time for payment is of the essence. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to: i. cancel the order or suspend any further deliveries or performance; ii. Appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and iii. Charge interest (both before and after any judgment) on the amount unpaid at the rate of 5% per annum above the base rate from time to time of HSBC Bank plc until payment is made in full.
The Company reserves the right to decline to trade with any company person or other entity. The Customer should quote its account number and order number when telephoning and in all correspondence. To avoid duplication, written confirmation of telephone orders must be clearly marked ‘Confirmation only’. The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly. Once accepted, an order may only be cancelled with the prior written agreement of a director of the Company. Orders for Goods are accepted by the Company by dispatching the Goods provided, however, that dispatch shall not constitute acceptance where the price for the Supplies has been incorrectly quoted or referenced in the Customer’s order.
Telephone, facsimile, email, web and e-procurement orders are automatically assumed to be urgent and save as set out below. Unless otherwise stated by written agreement all deliveries will be executed on an EXW the Company’s Israel warehouse, as the Company elects. ‘EXW’ shall have the meaning given it in INCOTERMS 2000. The Company may offer delivery on other terms and at additional cost if requested. The Company reserves the right to deliver or perform by instalments. Failure to meet a delivery or performance date where deliveries or performance are by instalment shall not prevent or restrict the Company from making further deliveries or rendering subsequent performance under the relevant Contract by instalment. The Company may use any method of delivery available to it. The Company will use reasonable endeavors to meet delivery and/or performance estimates but, except as set out in Condition 7 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and/or performance will not be of the essence. The Company reserves the right to delay dispatch for a number of reasons, including to perform any necessary credit or anti-fraud checks or procedures or to ensure that payment has been received in cleared funds in full. Where dispatch is delayed for such reasons, theCompany will use reasonable endeavors to inform the Customer.
The Customer must inspect the Supplies as soon as is reasonably practicable after delivery or, in the case of Services, performance and, except as set out in Condition 13 below, the Company shall not be liable for any defect in the Supplies unless written notice is given to the Company within 10 days of the date of inspection. The quantity of any consignment of Goods, as recorded by the Company upon dispatch from the Company’s place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events. Subject to condition 14(i) below, any liability of the Company for non-delivery or nonperformance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this Condition 7 will be limited to replacing the Goods or re-performing the Services within a reasonable time or to refunding the price then paid in respect of such Supplies.
Prior to returning any Goods to the Company for any reason, the Customer must contact the Company to obtain a returns authorization number (‘RMA’). All Goods are returned at the Customer’s risk and expense and should be undamaged by the Customer and in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return. The Company operates a 21 day return policy. To be accepted for return on this basis, Goods should be returned for receipt by the Company within 21 days of dispatch. The Customer should return the Goods to “The Returns Department, MSolutions, Hamesila 28/1street, Herzelia, Israel” clearly quoting the Returns Material Authorization Number (RMA), Customer’s account number and order number on the outside of the package. Any Goods returned after 21 days as ‘unwanted’ or ‘incorrectly ordered’ may be accepted at the discretion of the Company but will be subject to a minimum restocking fee of 20% of the invoice value of the Goods or $20, whichever is the greater.
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together “Descriptions”) wherever they appear (including without limitation in this Catalogue, on data sheets, application notes, dispatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and accepts no liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company’s negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation. Without prejudice to this Condition 9, Customers are recommended to check the Company’s website for the latest descriptions of the Goods, in particular, but without limitation, with regard to statements regarding RoHS.
Where delivery is EXW, the risk of damage to or loss of Goods will pass to the Customer when the Goods are made available for collection by the Customer or the Customer’s carriers. Otherwise, risk in the Goods shall pass to the Customer in accordance with the relevant Incoterm applicable to the Contract. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company on any account whatsoever. Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company’s Bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an order to that effect, or a receiver or administrator is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer or any equivalent action is taken in any other jurisdiction, the Company shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer. This Catalogue remains at all times the sole and exclusive property of the Company.
All Goods detailed in this Catalogue have been processed in strict accordance with standard quality procedures approved to BS EN ISO 9001:2000, unless otherwise indicated on the dispatch documentation. Further details can be obtained from the Company’s sales office at the time of order.
Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company’s negligence or otherwise. The responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s, unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer’s risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed. Except as set out in Condition 14, the liability of the Company to the Customer, should any warranty, statement, advice or recommendation confirmed in accordance with this Condition 12 prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid for the Supplies or, at the Company’s option, the supply of replacement Supplies which are sufficient and suitable.
The Company will, free of charge, repair or, at the Company’s option, replace Goods or, in the case of Services, re-perform Services which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design. This obligation will not apply: • if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company; • because the Customer did not follow the manufacturers’ instructions for storage, usage, installation, use or maintenance of the Goods; • if the Customer has failed to notify the Company of any defect in accordance with Condition 7 where the defect should have been reasonably apparent on reasonable inspection; or • if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of dispatch of the Goods or performance of the Services. Any replacement Supplies made or Goods repaired under this Condition 13 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company. Except as set out in Condition 14(i) , the Company’s sole obligation and liability , should any Supplies prove damaged or defective in accordance with this Condition 13, shall be limited to, at the Company’s option, the repair or replacement of the relevant Goods or the re-performance of the relevant Services or the refund of the price paid for the relevant Supplies Except as set out in Condition 14(i) and Condition 7 above, this Condition is the Company’s sole obligation and the Customer’s sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.
i. The Company does not exclude its liability to the Customer: o For breach of the Company’s obligations under section 11 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; o For personal injury or death arising as a result of the Company’s negligence; o Under section 2(3) of the Consumer Protection Act 1987; o For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or o For fraud or fraudulent misrepresentation. ii. Nothing in these Conditions shall affect the rights of any Customer who, notwithstanding Condition 22, deals as a ‘consumer’ as defined in the Unfair Contract Terms Act 1977. Except as provided in Conditions 7 (Inspection, defects and non-delivery), 12 (Performance and fitness for purpose), and 13 (Warranty/Guarantee) and Condition 14(i) above, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with: o Any breach by the Company of any of the express or implied terms of the Contract; o Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies; o Any acts or omissions of the Company at the Customer’s premises; o Any statement made or not made or advice given or not given by or on behalf of the Company, including as to compliance with legislation or regulation; or o Otherwise under the Contract. And the Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions or given in accordance with Condition 12) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favor of the Customer. Save as set out in Condition 14(i), the Company’s total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods or in the case of Services, re-performing the Services or, at the Company’s option, refunding monies already paid in respect of the Supplies. Each of the Company’s employees, agents and sub-contractors may rely on and enforce the exclusions and restrictions of liability in Conditions 6, 9, 12, 13, 14 and 16 in that person’s own name and for that person’s own benefit.
The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising. In particular, without limiting the above, title in any software program forming all or any part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms of its license or use and paying any royalty payable. The Company owns full copyright in respect of this Catalogue and its reproduction in whole or part is prohibited without the Company’s prior written consent.
In the event that the Company sends promotional material to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Supplies purchased from such material.
Goods may originate from a non-EC source. Unless otherwise confirmed by the Company in writing, nothing in this Catalogue is to be taken as a representation of the source of origin, manufacturer or production of the Goods or any part of them. Where certificates of origin are requested and available, these may be provided by the Company for a fee determined at the time of request.
The Customer is responsible at its own expense for obtaining any license and complying with any export regulations in force within Israel and any import or export regulations in force in the country for which the Goods are destined. The Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Supplies. The Company reserves the right not to supply certain customers or certain countries and to require from the Customer full details of the end use and final destination of the Goods.
The Company is a business to business supplier. The Catalogue and other product brochures produced by the Company are intended for use by business customers and not consumers. By ordering, the Customer confirms that he, she or it wishes to obtain the Supplies for the purposes of his, her or its business and not as a consumer.
The Goods are not designed, authorized or warranted to be suitable for: i. implantation in the body or for use in life support equipment, other medical equipment or in any application or system for any other purpose where the failure or malfunction of the Goods could reasonably be expected to result in personal injury, death, severe property or environmental damage. Use or inclusion of the Company’s Goods in any such equipment, system or applications is strictly prohibited and any such use will be at the Customer’s own risk. The Customer will indemnify the Company and its suppliers against any and all liability and expense (including costs) resulting from any such inclusion or use.
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under these Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labor disputes or inability to obtain or a delay in obtaining supplies of Goods or labor). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.
The Company reserves the right to monitor, intercept or record telephone calls and many monitor or intercept all email or other electronic communications made to its premises for training, security and quality purposes.
All Contracts shall be governed by and interpreted in accordance with Israel law and the Customer submits to the jurisdiction of the Israel Courts, but the Company may enforce such Contract in any court of competent jurisdiction.
Any provision of these Conditions of Supply 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 these Conditions of Supply and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions of Supply will not be constrained as a waiver of any rights under these Conditions of Supply. The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to any company in its group (as defined in section 53(1) of the Companies Act 1989) at any time. Except as set out in Condition 15, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
If there is any conflict between these Conditions and any translation of these Conditions then this English version will prevail.