Thanks for the speedy response. Will get a copy and get back to you. It may take a few days to get hold of this.
Below are the related clauses within the PO terms.
RIGHTS OF REJECTION
All goods found not up to specification shall be rectified or replaced to our satisfaction free of cost to us and within the time specified by us.
ON TIME DELIVERY
Compliance with the delivery lead times is an essential condition of the PO. Seller will make delivery of a shipment on the scheduled and agreed upon delivery date specified in this PO and/or meet the agreed upon milestone(s) and or completion date(s) for Services as provided in this PO and/or SoW. In addition to the Company’s other rights and remedies under this PO or at law and/or equity, the Seller will be liable for any liquidated damages assessed against the Company by a customer as a result of a late delivery by the Seller. The Company shall be protected by the full extent of statutory warranty. Irrespective of this the Company shall be entitled to claim from the Seller, at the Company’s discretion, either a cure of the default or a new delivery date. The right of the Company to claim damages instead of performance remains expressly reserved by the Company
The Seller on acceptance of this order warrants to the Company that the goods supplied are of merchantable quality and agree to indemnify and keep indemnified the Company against all actions, costs and claims howsoever arising as a result of a breach of this warranty, notwithstanding that any defect in the goods should under normal circumstances be discernible on inspection by the Company.
LIMITATION OF LIABILITY
Except for amounts due and owing as payment hereunder, Company’s liability to Seller for any and all direct damages will not exceed the amounts paid under this PO.
For information the ‘goods’ supplied by the seller are various cabling components which when installed and connected provide a cabling network (basically for computers to talk to each other). The ‘goods’ comprise of both material product (cabling components) and installation services (labour to install the components). The goods are installed, fully tested as being technically compliant / fully functional and the customer has since the date of installation had the benefit of the goods. The goods were installed strictly in compliance with required timescales. There have been no complaints or issues regarding the goods technical conformance. The issues are aesthetic ie the cabling components should have been installed in a tidier manner. Rectification will require removal and repositioning of some of the cables which will if the customer so chooses to argue disrupt their business whilst this work is carried out.
The ‘MERCHANTABLE QUALITY’ clause is of concern to me. I would argue that the goods are of merchantable quality as they have been fully installed and fully tested (100% pass) and currently used by the customer.
Can the company withhold the payment of invoice A?
Given the description above does the 'Merchantable Quality' clause apply given that the issues are aesthetic and do not compromise in any manner the functional use of the installation?