Terms of service

MSTAK LTD 

Terms and Conditions of Sale — Business Customers 

These terms and conditions (the "Conditions") apply to all sales of Goods by MSTAK LTD, a company registered in Scotland with company number [858940] and having its registered office at [25 Sandyford Place, C/O Stevenson & Kyles, Glasgow, Scotland, G3 7NG], VAT registration number [499584116] ("MSTAK", "we", "us"), through the website at [www.mstak.co.uk] (the "Website") or otherwise, to customers acting in the course of business. 

  1. DEFINITIONS AND INTERPRETATION 

  1. In these Conditions:  

"Buyer" means the person, firm or company purchasing Goods from MSTAK in the course of business;  

"Contract" means the contract between MSTAK and the Buyer for the sale and purchase of Goods formed in accordance with Condition 2;  

"Goods" means the spare parts, equipment, components, consumables and other items to be supplied by MSTAK under a Contract, comprising New Goods and/or Used Goods;  

"New Goods" means Goods described in the relevant listing or order confirmation as new or unused;  

"Used Goods" means Goods described in the relevant listing or order confirmation as used, second-hand, refurbished, reconditioned, ex-stock, surplus or similar;  

"Order" means the Buyer’s order for Goods placed through the Website or otherwise; and  

"Working Day" means a day other than a Saturday, Sunday or public holiday in Scotland. 

  1. Headings are for convenience only and do not affect interpretation. "Including" and similar expressions mean "including without limitation". 

  1. By placing an Order, the Buyer declares and confirms that it is purchasing the Goods wholly or mainly in the course of a trade, business, craft or profession and not as a consumer, and that the individual placing the Order is authorised to bind the Buyer. MSTAK relies on that declaration in contracting on these Conditions and may cancel any Order where it is or appears to be untrue. 

  1. BASIS OF CONTRACT 

  1. These Conditions apply to each Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate (including any terms contained in or referred to in the Buyer’s purchase order or other documentation), and of any terms implied by trade, custom, practice or course of dealing. 

  1. The display of Goods on the Website is an invitation to treat and not an offer to sell. Each Order constitutes an offer by the Buyer to purchase the Goods identified in it subject to these Conditions. 

  1. An Order is accepted, and the Contract is formed, only when MSTAK issues a written order confirmation or dispatches the Goods, whichever occurs first. An automated acknowledgement of receipt of an Order does not constitute acceptance. 

  1. MSTAK may decline any Order in whole or in part without giving reasons, including where Goods are unavailable, have been listed at an obviously incorrect price or description, or are subject to export control, sanctions or other legal restrictions. 

  1. Any quotation issued by MSTAK is valid for 30 days from its date unless otherwise stated, does not constitute an offer, and may be withdrawn at any time before a Contract is formed. 

  1. Once a Contract is formed, the Buyer may not cancel it except with MSTAK’s prior written consent. Where MSTAK consents to cancellation, the Buyer shall indemnify MSTAK against all losses, costs and expenses reasonably incurred by MSTAK as a result, including procurement, carriage, storage and handling costs and any restocking charge notified to the Buyer at the time of consent. 

 

  1. THE GOODS — GENERAL PROVISIONS 

  1. The Goods are as described in the relevant listing on the Website or in MSTAK’s order confirmation. Images, drawings, dimensions, weights and other descriptive matter published on the Website are approximate and for identification purposes only, and do not form part of the Contract unless expressly agreed in writing by MSTAK. 

  1. References to original equipment manufacturers ("OEMs"), brand names or OEM part numbers are for cross-reference and compatibility identification only, and do not represent that the Goods are manufactured, endorsed, certified or approved by the relevant OEM unless the listing expressly states that the Goods are genuine OEM parts. 

  1. The Buyer is solely responsible for satisfying itself that the Goods are suitable and compatible for the Buyer’s intended application, installation and operating environment. MSTAK does not provide engineering, design, installation or application advice, and no such advice shall be binding on MSTAK, unless expressly agreed in writing by a director of MSTAK. 

  1. MSTAK may make any change to the specification of the Goods that is required to conform with applicable law or safety requirements, or that does not materially affect their nature or quality. 

  1. Any technical advice, recommendation or assistance given by MSTAK regarding the selection, compatibility, storage, installation or use of Goods (whether oral or written) is given in good faith and to the best of MSTAK’s knowledge based on the information supplied by the Buyer, but does not form part of the Contract or of any warranty, and the Buyer relies on it at its own risk. 

  1. NEW GOODS 

  1. This Condition 4 applies to New Goods only. 

  1. MSTAK warrants that, on delivery and for a period of 12 months from delivery (the "New Goods Warranty Period"), New Goods will conform in all material respects with their description and will be free from material defects in materials and workmanship. Where the manufacturer of the New Goods provides a warranty of less than 12 months, the New Goods Warranty Period shall be limited to the duration of the manufacturer’s warranty; where the manufacturer’s warranty is longer, MSTAK will use reasonable endeavours to pass the benefit of the additional period through to the Buyer. 

  1. Subject to Condition 4.4, if: (a) the Buyer gives written notice to MSTAK during the New Goods Warranty Period, and within 5 Working Days of discovery, that New Goods do not comply with Condition 4.2; (b) MSTAK is given a reasonable opportunity to examine the Goods; and (c) the Buyer (if asked) returns the Goods to MSTAK at MSTAK’s cost, then MSTAK shall, at its option, repair or replace the defective Goods or refund the price of the defective Goods in full. 

  1. MSTAK shall not be liable for any failure of New Goods to comply with Condition 4.2 to the extent that: (a) the Buyer makes any further use of the Goods after giving notice under Condition 4.3; (b) the defect arises because the Buyer failed to follow the manufacturer’s or MSTAK’s instructions as to storage, commissioning, installation, use or maintenance, or (in the absence of such instructions) good trade practice; (c) the defect arises as a result of MSTAK following any drawing, design or specification supplied by the Buyer; (d) the Buyer alters or repairs the Goods without MSTAK’s written consent; or (e) the defect arises from fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions. 

  1. These Conditions shall apply to any repaired or replacement Goods supplied by MSTAK for the unexpired portion of the New Goods Warranty Period. 

  1. Except as set out in this Condition 4 and Condition 10.2, all warranties, conditions and other terms implied by statute or common law in relation to New Goods (including under sections 13 to 15 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law, and the remedies in Condition 4.3 are the Buyer’s sole and exclusive remedies for defective New Goods. 

  1. MSTAK shall have no liability under this Condition 4 for so long as any sum properly due from the Buyer to MSTAK under any Contract remains unpaid after its due date. In respect of New Goods not manufactured by MSTAK, MSTAK’s warranty obligations shall not exceed the recourse actually available to MSTAK against the manufacturer under the manufacturer’s warranty. 

  1. USED GOODS 

  1. This Condition 5 applies to Used Goods only. 

  1. Used Goods are sold as used items. The age, condition, service history, remaining service life and prior usage of Used Goods may be unknown or only partially known to MSTAK. Each listing will state the condition of the Used Goods to the extent known to MSTAK, and any condition grading, test result or functional description given is a good-faith assessment made at the time of listing only. 

  1. The Buyer is invited, before placing an Order, to inspect Used Goods at MSTAK’s premises by appointment, or to request additional photographs, videos, test data and available documentation, and to raise any queries regarding condition. The price of Used Goods reflects their used condition and the allocation of risk set out in this Condition 5, whether or not the Buyer chooses to inspect. 

  1. Subject to Condition 5.5, Used Goods are sold with all faults and imperfections and without any warranty as to their condition, quality, performance, remaining service life, or fitness or suitability for any purpose. All warranties, conditions and other terms implied by statute or common law in relation to Used Goods (including under sections 13 to 15 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law. 

  1. Nothing in Condition 5.4 excludes or limits: (a) MSTAK’s liability under Condition 10.2; or (b) any express written commitment made by MSTAK in the relevant listing or order confirmation (for example, a statement that an item has been bench-tested to a stated standard), provided that the Buyer’s remedies for breach of any such commitment shall be limited to those set out in Condition 5.6. 

  1. Where Used Goods are expressly described by MSTAK as "tested", "working" or "functional" and are inoperable on delivery, the Buyer must notify MSTAK in writing within 5 Working Days of delivery, and shall (if asked) return the Goods to MSTAK for examination. If MSTAK verifies the failure, MSTAK shall, at its option, repair or replace the Goods or refund the price paid. This is the Buyer’s sole and exclusive remedy in respect of the condition or performance of Used Goods. 

  1. The Buyer is solely responsible for verifying the regulatory status, certification, inspection and testing requirements applicable to Used Goods in the Buyer’s jurisdiction and industry, and for carrying out (at its own cost) any recertification, examination or testing required by law or good practice before putting Used Goods into service. 

  1. PRICE AND PAYMENT 

  1. The price of the Goods is the price stated at checkout or in MSTAK’s order confirmation. Unless otherwise stated, prices are exclusive of VAT (which shall be added at the applicable rate) and of costs of packaging, insurance and carriage, which shall be charged in addition. 

  1. All bank charges, intermediary bank charges and currency exchange costs incurred in connection with the Buyer’s payments are for the Buyer’s account, and payments shall be made in the invoiced currency in full without deduction for any such charges. 

  1. Where Goods have been listed at a price or with a description that is obviously incorrect and that the Buyer could reasonably have been expected to recognise as an error, MSTAK may cancel the Contract and refund any sums paid, without further liability. 

  1. Where a Contract provides for delivery more than 30 days after its formation or is placed on credit terms, MSTAK may, by notice before delivery, adjust the price to reflect: (a) any change to delivery dates, quantities or specifications requested by the Buyer; (b) any delay or additional cost caused by the Buyer’s instructions or by inaccurate or incomplete information supplied by the Buyer; or (c) any increase in carriage, materials or supplier costs beyond MSTAK’s reasonable control, provided that in the case of (c) the Buyer may cancel the undelivered Goods affected by written notice within 5 Working Days of MSTAK’s notice, in which case any sums paid for those Goods shall be refunded. 

  1. Unless credit terms have been agreed in writing, payment in full and cleared funds is due at the time the Order is placed. Where a credit account has been agreed, MSTAK shall invoice on or after dispatch and payment is due within 30 fifteen (15) days of the date of invoice, unless otherwise agreed. Time for payment is of the essence. 

  1. If the Buyer fails to make any payment when due, MSTAK shall be entitled, without prejudice to its other rights and remedies, to: (a) interest, compensation and reasonable recovery costs (including legal and debt collection costs) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing daily from the due date until payment in full; (b) suspend performance of any Contract and withhold deliveries until payment; and (c) appropriate any payment made by the Buyer to such of the Goods (under any Contract) as MSTAK considers appropriate. 

  1. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except as required by law). 

  1. DELIVERY 

  1. MSTAK shall deliver the Goods to the location set out in the Order or make them available for collection, as agreed. Any dates or periods quoted for delivery are estimates only, and time of delivery is not of the essence. 

  1. Delivery is complete when the Goods arrive at the delivery location or, where the Buyer collects, when the Goods are loaded onto the Buyer’s (or its carrier’s) vehicle. 

  1. MSTAK shall not be liable for any delay in delivery caused by an event within Condition 12, by the acts or omissions of any carrier, or by the Buyer’s failure to provide adequate delivery instructions or access. 

  1. If the Buyer fails to accept delivery within 5 Working Days of MSTAK notifying it that the Goods are ready, then, except where the failure is caused by an event within Condition 12 or by MSTAK’s breach: (a) the Goods shall be deemed delivered at 9.00 am on the sixth Working Day; and (b) MSTAK may store the Goods at the Buyer’s risk and cost and, if the Buyer has not accepted delivery within 30 days, resell or otherwise dispose of the Goods and account to the Buyer for any excess over the price (or charge the Buyer any shortfall). 

  1. MSTAK may deliver by instalments, each of which shall be a separate Contract. Delay or defect in one instalment shall not entitle the Buyer to cancel any other instalment. 

  1. Claims for shortage or visible transit damage must be notified to MSTAK in writing within 3 Working Days of delivery, with the delivery noted accordingly with the carrier. Any other nonconformity that is apparent on reasonable inspection must be notified to MSTAK in writing within 5 Working Days of delivery. Failing such notification, the Goods shall be deemed accepted as conforming, without prejudice to the Buyer’s rights under Condition 4 in respect of defects in New Goods that were not apparent on reasonable inspection. 

  1. Deliveries to addresses outside the United Kingdom are subject to prior written agreement, and to such delivery terms (by reference to Incoterms 2020 or otherwise), export documentation requirements and additional charges as MSTAK may specify. 

  1. RISK AND TITLE 

  1. Risk in the Goods passes to the Buyer on completion of delivery (or deemed delivery under Condition 7.4). 

  1. Title to (ownership of) the Goods shall not pass to the Buyer until MSTAK has received payment in full and cleared funds of the price of the Goods and of all other sums due from the Buyer to MSTAK on any account. 

  1. Until title passes, the Buyer shall: (a) hold the Goods as custodian for MSTAK; (b) store the Goods separately and readily identifiable as MSTAK’s property, and not remove or obscure any identifying marks; (c) keep the Goods insured against all risks for their full price; and (d) notify MSTAK immediately if it becomes subject to any of the events in Condition 14.1. If before title passes the Buyer becomes subject to any such event, or MSTAK reasonably believes such an event is about to happen, MSTAK may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them. 

  1. The Buyer may resell or use the Goods in the ordinary course of its business before title has passed, in which case title to the Goods shall pass to the Buyer immediately before the time of resale. 

  1. RETURNS OF NON-DEFECTIVE GOODS 

  1. MSTAK is not obliged to accept the return of Goods that conform with the Contract. Where MSTAK agrees in writing to accept such a return: (a) the Buyer must obtain a returns authorisation reference before shipment; (b) the Goods must be returned within 14 days of delivery, unused, undamaged and in their original packaging, at the Buyer’s risk and cost; and (c) MSTAK may apply a restocking charge of 20% of the price of the returned Goods. Used Goods that the Buyer inspected (or was given the opportunity to inspect) before purchase are not returnable under this Condition 9. 

  1. LIMITATION OF LIABILITY 

  1. References to liability in this Condition 10 include every kind of liability arising under or in connection with a Contract, including liability in contract, delict (including negligence), misrepresentation, restitution or otherwise. 

  1. Nothing in these Conditions limits or excludes any liability which cannot legally be limited or excluded, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession). 

  1. Subject to Condition 10.2, MSTAK shall have no liability for: loss of profits; loss of revenue; loss of business, contracts or opportunity; business interruption or downtime; loss of anticipated savings; loss of or damage to goodwill; loss of or corruption of data; the cost of procuring substitute goods; or any indirect or consequential loss. 

  1. Subject to Conditions 10.2 and 10.3, MSTAK’s total aggregate liability under or in connection with any Contract shall not exceed 100% of the price paid or payable by the Buyer for the Goods giving rise to the claim. 

  1. Any claim by the Buyer under or in connection with a Contract must be notified to MSTAK in writing within 12 months of delivery of the relevant Goods, failing which the claim shall be irrevocably waived, unless such a time bar is prohibited by law. 

  1. BUYER’S OBLIGATIONS AND COMPLIANCE 

  1. The Buyer shall comply with all laws applicable to its purchase, use, resale and export of the Goods, including export control, sanctions and anti-corruption laws, and shall not sell, supply, transfer or export the Goods, directly or indirectly, to any sanctioned person or to any embargoed or restricted destination. For deliveries outside the United Kingdom, the Buyer shall be the exporter/importer of record unless otherwise agreed in writing. 

  1. The Buyer warrants that it holds all registrations, licences, permits and authorisations necessary to purchase, import, store, use and (where applicable) resell the Goods, and shall ensure that any equipment purchased from MSTAK is transported, stored, installed, commissioned, operated and maintained by competent persons and in accordance with applicable health, safety and environmental law, the manufacturer’s instructions and good industry practice. 

  1. The Buyer shall indemnify MSTAK against all losses, liabilities, costs and expenses (including legal costs) arising out of or in connection with: (a) any claim that Goods sourced, procured or supplied in accordance with a specification, drawing, part number or instruction provided by the Buyer infringe third-party rights or are unsuitable; (b) any claim by a third party arising from the incorporation of the Goods into, or their use with, any product, system or installation of the Buyer; and (c) any breach by the Buyer of Condition 11.1 or 11.2. 

  1. INTELLECTUAL PROPERTY 

  1. The sale of Goods does not transfer to the Buyer any intellectual property rights in or relating to the Goods, including any trade marks, designs, patents, copyright or know-how, all of which remain the property of MSTAK or the relevant third-party owner. 

  1. The Buyer shall not use, reproduce or apply any trade mark, brand or part number appearing on or in relation to the Goods otherwise than as applied to the Goods as supplied, and shall not remove, alter or obscure any markings, serial numbers or notices on the Goods prior to resale. 

  1. FORCE MAJEURE 

  1. MSTAK shall not be in breach of a Contract or liable for any delay or failure to perform caused by an event or circumstance beyond its reasonable control, including acts of God, strikes or other industrial action, failure of suppliers or carriers, war, sanctions, epidemic, fire, flood, storm, or failure of utility or transport networks. If such an event continues for more than 60 days, either party may terminate the affected Contract on written notice without further liability (save for payment for Goods already delivered). 

  1. SUSPENSION AND TERMINATION 

  1. MSTAK may suspend further deliveries, require payment in advance, or terminate any Contract with immediate effect by written notice if the Buyer: (a) fails to pay any sum when due; (b) commits a material breach of a Contract and (if remediable) fails to remedy it within 14 days of notice; or (c) suspends or threatens to suspend payment of its debts, is unable to pay its debts as they fall due, or becomes subject to any step or proceeding in connection with insolvency, administration, receivership, liquidation, sequestration or any analogous event in any jurisdiction. 

  1. On termination, all sums due to MSTAK shall become immediately payable, and accrued rights and remedies shall be unaffected. 

  1. GENERAL 

  1. MSTAK may assign, subcontract or deal with its rights and obligations under a Contract. The Buyer may not assign or deal with any of its rights or obligations without MSTAK’s prior written consent. 

  1. Each Contract constitutes the entire agreement between the parties in relation to its subject matter. The Buyer acknowledges that it has not relied on any statement, promise or representation not set out in the Contract. Nothing in this Condition limits liability for fraud. 

  1. No variation of a Contract is effective unless in writing and signed by an authorised representative of each party. 

  1. No failure or delay by MSTAK in exercising any right or remedy shall constitute a waiver of it. 

  1. If any provision of these Conditions is or becomes invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable or, if that is not possible, deleted, and the remaining provisions shall be unaffected. 

  1. Notices must be in writing and delivered by hand, prepaid first-class post or email to the addresses stated in the Order or order confirmation, and are deemed received on delivery (hand), the second Working Day after posting (post) or at the time of transmission if within business hours, failing which the next Working Day (email). 

  1. A Contract does not confer any rights on any third party, whether under the Contract (Third Party Rights) (Scotland) Act 2017 or otherwise. 

  1. GOVERNING LAW AND JURISDICTION 

  1. Each Contract, 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 Scotland. 

  1. The parties irrevocably submit to the exclusive jurisdiction of the Scottish courts to settle any such dispute or claim.