Mettler-Toledo Ltd. Terms and Conditions - METTLER TOLEDO

Mettler-Toledo Ltd. Terms and Conditions

CONTENTS:

Goods and Services
Service Contract / Agreement

TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

1.    Interpretation

1.1 In these Conditions, the following definitions apply:

Business Day

a day (other than Saturday, Sunday or a public holiday) when banks in London are open for business;

Conditions

the terms and conditions set out in this document as amended from time to time in accordance with Condition 16.10 (General);

Contract

the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or the supply of Services in accordance with these Conditions;

Customer

the person or firm who purchases the Goods and/or Services from the Supplier;

Delivery

has the meaning given in Condition 3.5 (Delivery);

Force Majeure Event

has the meaning given in Condition 14 (Force Majeure);

Goods

The goods (or any part of them) set out in the Order;

Intellectual Property Rights

all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

Invoice

a written invoice sent by the Supplier to the Customer detailing the price of the Goods and/or Services provided;

Order

the Customer’s order for the Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be;

Order Confirmation

a written notice sent by the Supplier to the Customer confirming that the Order has been accepted (for the avoidance of doubt this will not include e-mails which only acknowledge that an Order has been placed);

Services

any services to be provided by the Supplier under the Contract;

Specification

any specification for the Goods, including any related plans and drawings, that is supplied to the Supplier by the Customer, or produced by the Supplier and agreed in writing by the Customer; and

Supplier

Mettler-Toledo Limited, incorporated and registered in England and Wales with company number 00959974 and whose registered office is at 64 Boston Road, Beaumont Leys, Leicester, LE4 1AW.

1.2 In these Conditions, the following rules apply:

1.2.1    a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2     a reference to a party includes its personal representatives, successors or permitted assigns;

1.2.3    a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.2.4    any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.5    a reference to writing or written includes faxes and e-mails provided always that e-mails sent to the Supplier must be sent to such e-mail address as the Supplier may notify the Customer for this purpose.

2.    Basis of Contract

2.1    Subject to Condition 2.2 below, these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2    For the avoidance of doubt, any written distribution agreement between the Supplier and the Customer will override these Conditions to the extent they contradict each other.

2.3    The Order constitutes an offer by the Customer to purchase the Goods and/or receive the Services in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.

2.4    The Order shall be deemed to be accepted when the Supplier issues the Order Confirmation, substantially begins to perform the Services or delivers the Goods (at which point the Contract shall come into existence).

2.5    The Contract (together with any additional terms set out in the Order Confirmation) constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any additional terms set out in the Order Confirmation shall prevail over these Conditions.

2.6    Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods and/or the supply of Services.

2.7    A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer. Subject to any agreement to the contrary the Supplier’s quotations are valid for 30 days from the date of issue (errors and omissions excepted). The Supplier can withdraw such quotation by notice in writing to the Customer at any time.

2.8    No standard terms or conditions endorsed upon, delivered with or contained in the Customer’s Purchase Order, acceptance of quotation, specification or similar document shall form part of the contract and the Customer waives any right which it otherwise might have to rely on those documents.

2.9    In the event of any dispute or conflicting terms the order of priority shall be (1) these Conditions, (2) the Invoice, (3) the Order Confirmation, (4) the Supplier’s quotation and (5) the Order.

2.10    The Supplier will not be liable for any losses resulting from inaccuracies in the Order Confirmation that are not brought to its attention on receipt.

2.11    The Supplier may make any changes to the specification of the Goods and Services which are needed to conform with any safety or other legal requirement.

2.12    Cancellation by the Customer will only be accepted at the discretion of the Supplier. If the Supplier agrees to such cancellation the Customer shall be liable to the Supplier for the payment of the cancellation charges in the following table (unless otherwise agreed in writing) together with any charges imposed on the Supplier by the Supplier’s suppliers due to the cancellation:

Days notice from Customer of cancellation prior to Supplier’s intended despatch date

Over 90

61-90

0-60

Charges as % of quoted price of cancelled Goods or Services

15%

25%

40%

3.    Delivery

3.1    The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers and the type and quantity of the Goods (including the code number of the Goods, where applicable). If requested by the Supplier, and without prejudice to the Customer’s rights under these Conditions, the Customer shall sign this delivery note to acknowledge Delivery of the Goods.

3.2    If the Supplier agrees to deliver the Goods it shall do so by the means most convenient to the Supplier to the address or addresses agreed by the Customer and the Supplier or (in the event that the Customer fails to specify an address) to any address at which the Customer resides or carries on business in the United Kingdom (the “Delivery Location”).

3.3    While the Supplier will endeavour to deliver the Goods or complete the Services by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Supplier will not be liable for any failure to deliver or complete by such a date or within such a period. Time of Delivery is not of the essence.

3.4    Unless otherwise agreed in writing, packing cases are not returnable.

3.5    Subject to Condition 3.6, Delivery of the Goods shall be completed on the earliest of:

3.5.1    completion of the unloading of the Goods at the Delivery Location (whether by the Supplier or by a third-party engaged to deliver the Goods on its behalf);

3.5.2    if the Supplier collects the Goods (or arranges for a third-party to do so on its behalf), the point at which the Goods begin to be loaded onto the vehicles provided by the Supplier, or the relevant third-party.

3.6    If for any reason the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier attempting Delivery on the agreed Delivery date:

3.6.1    risk in the Goods shall pass to the Customer (including for loss or damage caused by the Supplier's negligence);

3.6.2    Delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready;

3.6.3    the Supplier may store the Goods until Delivery takes place, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance); and

3.6.4    the Supplier may levy further charges to recover its losses arising from this event.

3.7    If 10 Business Days after the Supplier notified the Customer that the Goods were ready for Delivery the Customer has not taken Delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

3.8    No claim for faulty Goods or shortages will be considered unless the Supplier is advised in writing, such notice shall be given to the Supplier as soon as is reasonably practical. 

3.9    No claim for non-delivery of Goods shall be considered unless the Supplier is advised in writing, such notice shall be given to the Supplier as soon as is reasonably practical.

3.10    Subject to Condition 3.11, any liability of the Supplier for non-delivery and/or faulty Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any Invoice raised for the Goods.

3.11    Notwithstanding Condition 3.10, the Supplier shall not be liable for any delay in Delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to obtain any relevant import/export authorisations required or failure to provide the Supplier with any instructions that are relevant to the supply of the Goods.

3.12    The quantity of any consignment of Goods as recorded by the Supplier upon collection by the Customer or despatch from the Supplier’s place of business (as applicable) shall be conclusive evidence of the quantity received by the Customer on Delivery unless the Customer can provide conclusive evidence proving the contrary.

3.13    The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately as agreed with the Customer. Each instalment shall constitute a separate Contract. Any delay in Delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.    Quality

4.1    Absent a separate warranty issued to the Customer by the Supplier, the Supplier expressly warrants the Goods manufactured and the Services performed by it to the Customer solely as set out in this Condition 4.

4.2    These warranties may be transferred to a subsequent purchaser of the Goods only with the prior written consent of the Supplier.

4.3    The following shall constitute the sole and exclusive remedies of the Customer for any breach by the Supplier of its warranty hereunder.

4.4    The Supplier warrants that the Goods covered by this warranty will be free from defects in workmanship and materials, under normal use, until the earlier of:

4.4.1    12 months from the date of their original installation; and

4.4.2    18 months from the date of their shipment to the Customer.

Should any such defects be found and reported during the term of the warranty the Supplier will, at its option, refund the purchase price or correct such defects (furnishing replacement parts and labour free of charge to the Customer).

4.5    The Supplier warrants that software developed by the Supplier will perform substantially the functions described in the software documentation when properly installed. The Supplier does not warrant that the software is error-free, that the Customer will be able to operate the software without interruption, or that the software will be free of vulnerability to intrusion or attack. The warranty period will be the same as the warranty period for the Supplier’s Goods within which the software is embedded. If the software is not embedded within the Supplier’s Goods, the terms and conditions of the respective end user license agreement of the Supplier shall apply exclusively. If no end user license agreement is applicable, the warranty period will be 90 days from the date of purchase by the Customer.

4.6    The Supplier warrants that the Services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed, and prompt notification is made by the Customer in writing to the Supplier, the Supplier will supply the necessary service, direction or consultation to correct the nonconformity.

4.7    The foregoing warranties are further subject to the following general conditions:

4.7.1    consumables, accessories, normal wear and tear, wear parts and perishables are expressly excluded from the foregoing warranties;

4.7.2    if the Customer requests the performance of warranty work provided for under the foregoing warranties during times other than normal Supplier work periods, the Customer will be required to pay for all premium time;

4.7.3    these warranties will not apply where the Supplier’s Goods and/or software has been subjected to: accident, alteration, misuse, abuse, failure on the part of the Customer to ensure proper storage, operation, installation and/or maintenance, servicing by anyone other than the Supplier’s authorized personnel, the addition or supply of equipment not approved for incorporation into the Supplier’s Goods or software, integration into the Customer’s environment, or Customer / third party supplied software or interfacing;

4.7.4    the Supplier does not warrant the calibration of any scale. The Supplier does however warrant the scales manufactured by it to be capable of being adjusted to meet the Supplier’s printed specifications, if any, for weighing accuracy as to the particular model/type scale for the period of warranty stated above (when properly installed and used); and

4.7.5    products of other manufacturers sold by the Supplier as such are warranted by the Supplier solely to the extent of any remaining warranty provided by the original manufacturer.

4.8    in the event Goods are repaired by the Supplier, the performance of such repair work will not extend existing nor generate new warranty coverage for the Goods as a whole or for those parts not repaired or replaced by the Supplier.

4.9    To correct defects the Supplier may attempt to diagnose and resolve the defect over the telephone or electronically. Certain Goods contains remote support capabilities for direct problem reporting, remote problem determination, and resolution with the Supplier.

4.10    When the Customer contacts the Supplier for warranty work, it must follow the problem determination, resolution and procedure that the Supplier specifies. At any time following or to assist in problem determination, the Supplier may require return of the part or product to depot for service.

4.11    If the Supplier determines on-site work is required, a service technician will be scheduled for on-site work. If the Customer gives notice of a defect to the Supplier and requests the Supplier for on-site work when the defect could have been remedied remotely, or if the Supplier responds to the Customer’s notice of defect and no defect is found for which the Supplier is liable, the Supplier shall be entitled to compensation for any work performed and costs it has incurred as a result of the Customer’s request.

4.12    The Customer agrees to use available remote support technologies where it is reasonably possible to do so. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination and resolution may result in increased response-time and additional costs to the Customer.

4.13    Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract (including warranties as to merchantability or fitness for a particular purpose).

4.14    The Supplier is not responsible for the provision of site test weights or weights and measures stamping fees unless otherwise agreed in writing.

4.15    Any figures given for the performance of the Goods are based upon such as the Supplier expects to obtain on test. The Supplier will only guarantee performance within specified margins as stated in the quotation or Order Confirmation and the Customer shall assume responsibility for the capacity and performance of the Goods being sufficient for the Customer’s purpose.

5.    Title and risk

5.1    The risk in the Goods shall pass to the Customer on Delivery.

5.2    Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.

5.3    Until title to the Goods has passed to the Customer, the Customer shall:

5.3.1    hold the Goods on a fiduciary basis as the Supplier's bailee;

5.3.2    store the Goods so that they remain readily identifiable as the Supplier's property;

5.3.3    not remove, deface or obscure any identifying mark on or relating to the Goods;

5.3.4    maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of Delivery;

5.3.5    notify the Supplier immediately if it becomes subject to any of the events listed in Condition 8.2 (Customer’s Insolvency…); and

5.3.6    give the Supplier such information relating to the Goods as the Supplier may require from time to time,

but the Customer may resell or use the Goods in the ordinary course of its business (which, for the avoidance of doubt, shall not include any period that the Customer is subject to any of the events listed in Condition 8.2 (Customer’s Insolvency…).

5.4    If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 8.2 (Customer’s Insolvency…), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

5.5    The Customer shall indemnify the Supplier for all related costs and expenses (including collection costs, legal fees and court costs) incurred by the Supplier in recovering the Goods pursuant to Condition 5.4 above.

6.    Supply of Services

6.1    The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

6.2    The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

7.    Price and payment

7.1    The price of the Goods and/or Services shall be the price set out in the Order or (if provided) the Order Confirmation (the price set out in the Order Confirmation shall take priority).

7.2    The Supplier may, by giving notice to the Customer at any time up to 1 Business Day before Delivery of the Goods and/or performance of the Services, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:

7.2.1    any request by the Customer to change the delivery date, quantities or types of Goods and/or Services ordered, or the Specification; or

7.2.2    any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.3    The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport (if applicable) of the Goods, which shall be paid by the Customer when it pays for the Goods.

7.4    The price of the Goods and/or Services is exclusive of amounts in respect of value added tax (“VAT”) that the Supplier may incur. The Customer shall, on receipt of a valid VAT invoice pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.

7.5    The Supplier may at any time require payment in advance or payment on account prior to providing the Goods and/or Services.

7.6    In the event that the Supplier has agreed to waive its right to receive payment in advance or on account in accordance with Condition 7.5 above then, unless stated otherwise in the “Commercial Details” set out in the relevant quotation, the Customer shall pay each Invoice in full and in cleared funds within 30 calendar days of the date of the invoice.

7.7    Unless otherwise agreed in writing, the Supplier shall be entitled to invoice the Customer for the Goods or Services or any instalment thereof on or at any time after:

7.7.1    Delivery of the Goods or any instalment thereof; or

7.7.2    completion of the Services or any instalment thereof,

unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Customer at any time after:

7.7.3    the Supplier has notified the Customer that the Goods are ready for collection; or

7.7.4    (as the case may be) the Supplier has tendered delivery of the Goods.

7.8    Without prejudice to Conditions 7.5 and 7.6 above, if the Contract provides for staged payments the Supplier shall be entitled to payment at such intervals as may be specified in the Contract. Unless otherwise expressly agreed by the parties in writing any element of the payment for Goods which is payable on installation of the Goods shall be payable by the Customer whether or not the installation is carried out by the Supplier, the Customer or a third-party (such payments are deferred payments for the Goods and not installation charges).

7.9    If the Contract is to be fulfilled in separate instalments, payment of each instalment, delivery, or part shall be as if the same constituted a separate contract. However, in the event of the Supplier accepting payment by instalments any delay in the receipt by the Supplier shall, without prejudice to any other right, forthwith entitle the Supplier to the whole of the outstanding Contract sum and the Supplier shall be entitled to suspend any further deliveries of Goods or performance of Services.

7.10    Where the Supplier has agreed that the price is payable in a currency other than Pounds Sterling all banking and similar charges incurred by the Supplier may be recharged to the Customer.

7.11    All payments shall be made to the bank account nominated in writing by the Supplier and time of payment is of the essence.

7.12    If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (the “due date”), then:

7.12.1    the Customer shall pay interest on the overdue amount at the rate of 4% per annum above The Royal Bank of Scotland plc’s base rate. Such interest shall accrue on a daily basis and being compounded quarterly from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;

7.12.2    the Supplier may suspend the delivery of all Goods and/or Services until payment has been made in full; and

7.12.3    the Customer shall indemnify the Supplier for all related costs and expenses (including collection costs, legal fees and court costs) incurred by the Supplier in recovering payments.

7.13    The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7.14    Where the Customer requires special packaging for the Goods the Supplier reserves the right to make an additional charge therefore.

8.    Customer's insolvency or incapacity

8.1    If the Customer becomes subject to any of the events listed in Condition 8.2 below, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods and/or Services delivered to the Customer shall become immediately due.

8.2    For the purposes of Condition 8.1 above, the relevant events are:

8.2.1    the Customer 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) 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 as 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; or

8.2.2    the Customer commences negotiations with all or any class of its 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; or

8.2.3    (being an individual) the Customer is the subject of a bankruptcy petition or order; or

8.2.4    a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

8.2.5    (being a company) 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 Customer; or

8.2.6    (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or

8.2.7    a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or

8.2.8    any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 8.2.1 to Conditions 8.2.7 above (inclusive); or

8.2.9    the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or

8.2.10    (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

9.    Customer’s Obligations

9.1    The Customer shall:

9.1.1    ensure that the terms of the Order and (if submitted by the Customer) the Specification are complete and accurate;

9.1.2    co-operate with the Supplier in all matters relating to the Services;

9.1.3    provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Goods and Services;

9.1.4    provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

9.1.5    prepare the Customer's premises for the supply of the Goods and Services and at all times provide a safe working environment for the Supplier’s employees agents or sub-contractor and will comply with all other regulations in connection therewith and will indemnify the Supplier in respect of any loss incurred by the Supplier due to the Customer’s breach of this Condition;

9.1.6    keep and maintain all Goods remaining the property of the Supplier and delivered on site until the Supplier has removed the same;

9.1.7    maintain sufficient insurance to comply with it’s obligations under this Contract;

9.1.8    obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

9.1.9    pass on to all relevant personnel all information as to the use and safe handling of the Goods as may have been passed on to the Customer by the Supplier.

9.2    If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

9.2.1    the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

9.2.2    the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this Condition 9.2; and

9.2.3    the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

10.    International Supply Contract

10.1    If the Contract is an International Supply Contract (as described in Section 26(3) of the Unfair Contract Terms Act 1977) it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract in accordance with the method of delivery agreed (and, in the absence of such agreement, Ex Works the Supplier’s premises) save that in the event of any inconsistency between Incoterms and any express term of the Contract the latter shall prevail. The Supplier shall be under no obligation to give the Customer the notice specified in Section 32 (3) of the Sale of Goods Act 1979.

10.2    Unless otherwise agreed in writing, in the case of International Supply Contracts the Customer shall arrange payment to the Supplier under full irrevocable letter of credit confirmed by a Bank in the United Kingdom. If for any cause outside the Supplier’s control the Goods cannot be despatched or if the Supplier is not obliged to obtain bills of lading then payment in full shall be made by the Customer upon representation of the Invoice and notification from the Supplier that the Goods are ready for despatch.

10.3    Unless otherwise agreed in writing with the Supplier, where Goods are supplied for export from the United Kingdom the Customer shall be responsible at its cost for complying with any legislation or regulations governing the importation of the Goods into the country of destination (including obtaining relevant licences, permits and permissions) and for the payment of any duties and for supplying all relevant details to the Supplier where Delivery is to be made at the Customer’s premises.

11.    Installation and Takeover

11.1    Unless otherwise agreed in writing with the Supplier, where the Supplier has agreed to install or commission the Goods an additional charge may be made by the Supplier if the Supplier is prevented from carrying out such installation or commissioning for more than 30 days after Delivery of the Goods by the Supplier unless due to the act or omission of the Supplier.

12.    Intellectual Property Rights

12.1    The Customer acknowledges that all Intellectual Property Rights in or arising from the Goods and/or Services belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Goods and/or Services other than the right to use it in accordance with these Conditions.

12.2    If and to the extent that the Specification is provided by the Customer the Customer shall indemnify the Supplier for all costs and expenses (including legal fees and court costs) incurred by the Supplier in defending any claim or action brought against the Supplier by a third party alleging that the Goods (or any part of them) infringes their Intellectual Property Rights if such infringement (or alleged infringement) is a result of the Specification.

12.3    To the extent that any software is inherent in any Goods supplied, the Supplier shall grant the Customer a non-exclusive, royalty free licence to use such software for the sole purpose of operating the Goods.

13.    LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

13.1    Nothing in these Conditions shall limit or exclude the Supplier's liability for:

13.1.1    death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

13.1.2    fraud or fraudulent misrepresentation; or

13.1.3    breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

13.1.4    defective products under the Consumer Protection Act 1987; or

13.1.5    any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

13.2    Subject to Condition 13.1 above:

13.2.1    the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and

13.2.2    the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the price of the Goods and/or Services (as applicable and as set out in the Invoice or Order Confirmation).

14.    Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

15.    Confidential Information

15.1    The Customer shall keep in strict confidence all technical or commercial know-how, prices, payment terms, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier’s business or its products or its services which the Customer may obtain.

15.2    The Customer shall restrict disclosure of such confidential information to:

15.2.1    such disclosure as may be required by law, court order or any governmental or regulatory authority; and

15.2.2    such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations under the Contract. The Customer shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

15.3    This Condition 15 shall survive termination of the Contract.

16.    General

16.1    The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

16.2    The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

16.3    Any notice or other communication given to a party under or in connection with the Contract 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, recorded delivery, commercial courier, fax or e-mail.

16.4    A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 16.3 above; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, at the time of transmission or if sent by e-mail, at the time of receipt.

16.5    Conditions 16.3 and 16.4 above shall not apply to the service of any proceedings or other documents in any legal action.

16.6    If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

16.7    If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16.8    A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

16.9    A person who is not a party to the Contract shall not have any rights under or in connection with it.

16.10    Any variation to the Contract shall only be binding when agreed in writing and signed by both parties. A list of authorised signatories of the Supplier is available on request. The Supplier reserves the right to amend these Conditions from time to time provided that the Supplier has given the Customer one months’ written notice of such changes.

16.11    If there is an inconsistency between any of the provisions in these Conditions and the provisions of a quotation which forms the basis of the Contract, the provisions of the quotation shall prevail.

16.12    On termination of this Contract for any reason 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 clauses which expressly or by implication have effect after termination shall continue in full force and effect.

16.13    The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

  

METTLER TOLEDO LTD SERVICE AGREEMENT

1. DEFINITIONS

1.1    In this Agreement the following definitions apply: 

1.1.1    “Agreement” means the contract between the Company and the Customer for the supply of Services in accordance with these conditions;

1.1.2    “AnnualPremium” means the fee paid by the Customer to the Company in accordance with clause 3.1 (Charges) below in respect of the provision of a Service Package for a twelve month period, as amended from time to time by the Company and notified in writing to the Customer;

1.1.3    “CommencementDate” means the date specified in the Schedule;

1.1.4    “Company” means Mettler-Toledo Limited (Company Number 959974) whose registered office is at 64 Boston Road, Beaumont Leys, Leicester LE4 1AW;

1.1.5    “Customer” or “you” means the individual, firm or Company specified in the Schedule with whom the Company contracts;

1.1.6    Equipment” means any goods which are to have been supplied by the Company to the Customer including replacement parts, or, the goods specified in the Schedule;

1.1.7    “Services” means the maintenance, repair and key part replacement services to be carried out by the Company for the Customer in relation to the Equipment (as more particularly defined in the Schedule and Service Package);

1.1.8    “ServicePackage” means one of the combinations of Services offered by the Company to the Customer, as more particularly described in the Company’s service agreement literature.

1.2    a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.3    any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2.     DURATION

2.1    This Agreement will come into force on the Commencement Date and unless specified otherwise continue for an initial period of twelve months.

3.    CHARGES

3.1    In consideration of the Company providing the Services for the term of this Agreement you agree to pay the Annual Premium set out in the Schedule.

3.2    You will pay all invoices within 30 days of the date of invoice in full and in cleared funds.

3.3    The Company shall invoice the Customer for the Annual Premium yearly in advance. Any other invoices arising under this Agreement may be invoiced at the Company’s discretion.

3.4    If the Company’s representative decides that a major repair or overhaul is required we will supply an itemised estimate of cost to you which shall be valid for 30 days.

3.5    If you do not approve the estimate or if the Company’s representative determines that the Equipment is beyond economic repair or is in any way hazardous the Company may terminate this Agreement by written notice to you.

3.6    The Company shall not incur any liability to you following termination under this clause except that you shall be entitled to a refund of a proportion of the Annual Premium depending upon the Services already carried out by the Company.

3.7    Without prejudice to any other rights of the Company, interest will be payable on all overdue accounts at Barclays Bank plc base rate plus 4% or at the rate specified from time to time under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is the higher).

3.8    All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Agreement by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

4.    MAINTENANCE

4.1    During this Agreement you, your employees’ agents and sub-contractors shall not perform or attempt to perform any repairs, maintenance or other works other than those described in the operations manual. Any such interference with the Equipment shall invalidate any warranty or service agreement currently in force.

4.2    You shall indemnify the Company in respect of any costs, claims or loss arising from such interference.

4.3    A minimum of 30 day’s notice is required from date of order, prior to the first pre-arranged site visit to allow for forward planning.

4.4    The Customer will be responsible for all costs of bringing Equipment up to a good working condition prior to commencement of this Agreement.

4.5    You shall at all times:

4.5.1    provide adequate working space, heat, light and ventilation and comply with all safety legislation and codes of practice relevant to providing a safe working environment where the Equipment is located;

4.5.2    use your best endeavours to ensure that your employees operate the Equipment in accordance with the Company’s operating instructions and observe all instructions given by the Company regarding the care and use of the Equipment;

4.5.3    provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and

4.5.4    co-operate with the Company in all matters relating to the Services.

4.6    If the Company's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

4.6.1    the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company's performance of any of its obligations;

4.6.2    the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this Clause 4.6; and

4.6.3    the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.

4.7    When performing the Services the Company may attempt to diagnose and resolve any issues concerning the Equipment over the telephone or electronically.  Certain Equipment contains remote support capabilities for direct problem reporting, remote problem determination, and resolution with the Company. 

4.8    When the Customer contacts the Company regarding the Equipment it must follow the problem determination, resolution and procedure that the Company specifies.  At any time following or to assist in the provision of the Services, the Company may require return of the Equipment (or part thereof) to the Company’s depot for service. 

4.9    If the Company determines on-site work is required, a service technician will be scheduled for on-site work.  If the Customer gives notice of a defect to the Company and requests the Company for on-site work when the defect could have been remedied remotely, or if the Company responds to the Customer’s notice of defect and no defect is found for which the Company is liable, the Company shall be entitled to compensation for any work performed and costs it has incurred as a result of the Customer’s request. 

4.10    The Company encourages the Customer to use available remote support technologies.  Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination and resolution may result in increased response-time and additional costs to the Customer.

5.    REPLACEMENT PARTS

5.1    All parts removed from the Equipment for replacement by the Company shall become the property of the Company.

5.2    The Company reserves the right to replace any part that fails to perform its proper function rather than to repair it.

5.3    All Agreements exclude the supply and fitting of consumable and expendable items as determined by the Company. Such items will be replaced at the Customer’s own cost and expense.

6.    MOVEMENT OF EQUIPMENT

6.1    You must give the Company 14 day’s written notice if the Equipment is to be moved to a new location. The Company may terminate this Agreement forthwith unless any advice regarding the relocation of the Equipment is strictly followed. You may be required to pay a Surcharge in addition to the Annual Premium. The level of this surcharge will be notified to you before the relocation.

6.2    It is your sole responsibility to ensure that the relocation instructions are adhered to. The Company accepts no liability for such relocation unless carried out by its own representatives.

7.    CONDITION OF EQUIPMENT

7.1    YOU SHALL ENSURE THAT, PRIOR TO SERVICING OF THE EQUIPMENT BY THE COMPANY, THE EQUIPMENT IS DECONTAMINATED AND FREE FROM ANY HARMFUL SUBSTANCES MATERIAL OR EFFECTS INCLUDING BUT NOT LIMITED TO RADIOACTIVITY, CARCINOGENIC IRRITANT OR CORROSIVE MATERIALS OR SUBSTANCES.

8.    WARRANTY

8.1    The Company’s liability in respect of any defect in or failure of replacement parts or default in the Services is limited to replacing or repairing the defective part or carrying out corrective action entirely at its discretion.

8.2    All other conditions, warranties, terms expressed or implied, statutory or otherwise are excluded.

8.3    The Company warrants that the Services will be performed in a workmanlike manner in conformity with standard industry practice.  Should any nonconformity be detected within 30 days after the work is completed and prompt notification is made by the Customer in writing to the Company, the Company will supply the necessary service, direction or consultation to correct the nonconformity.

8.4    The foregoing warranty is subject to the following general conditions:

8.4.1    consumables, accessories, normal wear and tear, wear parts and perishables are expressly excluded from the foregoing warranties;

8.4.2    if the Customer requests the performance of warranty work provided for under the foregoing warranties during other than normal Company work periods, the Customer will be required to pay for all premium time; and

8.4.3    these warranties will not apply where the Equipment has been subjected to: accident, alteration, misuse, abuse, failure on the part of the Customer to ensure proper storage, operation and/or maintenance, installation or servicing by other than the Company’s authorized personnel, the addition or supply of equipment not approved for incorporation into the Company’s product, integration into the Customer’s environment, or Customer/ third party supplied software or interfacing. 

9.    TERMINATION

9.1    Either party may terminate this Agreement at any time by giving three month’s written notice to the other party if the other party persistently fails to perform its obligations under this Agreement and fails to rectify the situation within 30 days of having been served with written notice requiring to do so. Where the customer terminates this Agreement under this clause 9.1, it shall be entitled to reimbursement of part of the Annual Premium calculated from the end of the notice period.

9.2    The Company reserves the right to refuse to accept early termination of this Agreement where parts or tools have been purchased specifically to support this Agreement.

9.3    The Company may at any time terminate this Agreement forthwith by giving written notice to the Customer in any of the following circumstances:

9.3.1    if the Customer is more than 30 days late with payment of any sum due;

9.3.2    if the Customer commits a material breach of this Agreement which, if capable of remedy, is not remedied within 30 days of receiving notice requiring it to do so;

9.3.3    the Customer 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;

9.3.4    the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts,

9.3.5    the Customer is the subject of a bankruptcy petition or order;

9.3.6    a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

9.3.7    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 Customer;

9.3.8    a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;

9.3.9    a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

9.3.10    any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 9.3.4 to Clause 9.3.9 above (inclusive);

9.3.11    the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or

9.3.12    the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

9.4    Without prejudice to any other rights the Company may have it shall be entitled, without incurring liability to the customer, to suspend its work under this Agreement until any sums due by the Customer to the Company under any contract between the Company and the Customer have been paid in full.

9.5    Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

9.6    Termination of this Agreement shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

10.    FORCE MAJEURE

10.1    Neither party shall be liable to the other for any delay or failure to perform its obligations hereunder (other than a payment of money) if such delay or failure is due to any cause of conditions beyond its reasonable control. Similarly any damage to the Equipment resulting from such causes or conditions shall not be covered by this Agreement. Such causes or conditions shall include, without limitation, act of God, acts of Government, industrial disputes, fires, floods, storms, electrical interference, wars, riots and civil disturbances. 

11.    CONFIDENTIALITY

11.1    A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain.

11.2        The Receiving Party shall restrict disclosure of such confidential information to:

11.2.1    as may be required by law, court order or any governmental or regulatory authority; and

11.2.2    such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.

11.3    This Clause 11 shall survive termination of this Agreement.

12.    LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1    Nothing in this Agreement shall limit or exclude the Company's liability for: 

12.1.1    death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

12.1.2    fraud or fraudulent misrepresentation; or

12.1.3    breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

12.1.4    defective products under the Consumer Protection Act 1987; or

12.1.5    any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

12.2    Subject to Clause 8.1 (Warranty) and Clause 12.1 above:

12.2.1    the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Agreement; and 

12.2.2    the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Agreement in each year, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the Annual Premium for that year.

13.    SUPPLY OF SERVICES

13.1    The Company shall supply the Services to the Customer in all material respects.

13.2    The Company shall use all reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

13.3    The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.

14.    MISCELLANEOUS

14.1    This Agreement covers the entire agreement between the Company and you in respect of the services and may not be varied except by written agreement in particular no subsequent terms or conditions of purchase of the services will be accepted by the Company.

14.2    The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Agreement.

14.3    You shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement without the prior written consent of the Company. The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.

14.4    If any provision of this Agreement shall be found to be invalid or unenforceable, it shall not affect any other provision of this Agreement which shall remain in full force and effect.

14.5    The failure of the Company to enforce any provision of this Agreement shall not be construed as a waiver of such provision and shall in no way affect the Company’s right to enforce it.

14.6    Any 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 Clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail.

14.7    A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 14.6 above; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, at the time of transmission or if sent by e-mail, at the time of receipt.

14.8    Clauses 14.6 and 14.7 above shall not apply to the service of any proceedings or other documents in any legal action.

14.9    A person who is not a party to the Agreement shall not have any rights under or in connection with it.

14.10    Issuing of credits for items that the customer requests to be removed part way through a contract period is not permitted, these will be addressed at renewal.

15.    JURISDICTION

The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

  

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