STANDARD TERMS OF TRADING FOR HYDRAULIC PLANT SERVICES LTD
HEREAFTER REFERRED TO AS “HPS”
1 DEFINITIONS
(1) In these conditions
(i) ‘Conditions’ means the standard terms and conditions
of trading of HPS as set out herein.
(ii) ‘Contract’ means the Contract for the supply
of goods by HPS in the event of an order, verbal or
written from the Customer.
(iii) ‘The Customer’ means the person, company
or firm to whom the quotation (verbal or written)
is addressed, or in the absence of a quotation,
the person, company or firm to whom the goods were
despatched to or collected on behalf of.
(iv) ‘Delivery’ means delivery of the goods in accordance
with clause 7(i).
(v) ‘Goods’ means goods and/or resulting goods and/or
services sold to the Customer by HPS at
the Customer’s request.
(vi) ‘Purchase Price’ means the price for the
supply of goods under a Contract.
(vii) ‘Resulting Goods’ means goods as described
in clause 11(4).
(viii) ‘Order’ means written or verbal request for
HPS to supply goods in accordance with the
conditions herein.
(ix) ‘HPS’ means the owners of HPS and/or any employee
of HPS and/or any persons contracted by
HPS.
(x) ‘Reasonable time’ in respect of Paragraph 5 includes time taken by original
manufacturer to
assess defective goods.
(2) In these conditions the masculine includes the
feminine and the plural includes the singular and
vice versa.
2 CONDITIONS
These conditions form the only basis of the contract
between HPS and the Customer and supersede
in all respects any prior agreement or representation
written or oral made by HPS to the Customer.
These conditions apply unless the contrary is expressly
agreed in writing and signed by a partner in
HPS prior to goods being supplied.
3 INSPECTION AND NOTICE OF DEFECTS
(1) The Customer acknowledges that he has not placed
an order relying upon
(a) Any skill and/or expertise of HPS and/or (b)
any written or oral statements and/or
representations made to him by HPS.
(2) The Customer also acknowledges that he has carried
out or is deemed to have carried out a
thorough inspection of the goods at delivery and
is satisfied that there are no defects or shortages
which a reasonable examination could have revealed.
(3) Any other defects in the goods which may exist
or arise after delivery must be notified by the
Customer to HPS in writing within 24 hours of the
same becoming apparent, but will be subject to
condition 6(2)(f) hereof.
(4) In default of notification of any defects in accordance with this clause the Customer waives all
rights against HPS.
4 DESCRIPTION AND SAMPLE OF MATERIALS
(1) Sizes and weights of goods are approximately
only and to the extent that they do not correspond
with their contractual description as to size
and weight and any such difference shall not render the
goods suitable for the buyers purpose the Customer
must accept delivery of them.
(2) Notwithstanding that a sample of goods may have
been shown to and/or inspected by the
Customer, the Customer acknowledges that such sample
was shown and inspected solely to enable
the Customer to judge for himself the quality and
description of the goods and in no way shall it be
construed as to constitute a sale by sample or description.
The Customer takes goods after any
inspection at his own risk in all respects and for
all purposes.
(3) HPS binds itself only to deliver goods in accordance
with the general description under which
they were sold whether or not any special or
particular description was given or is implied by law.
Any special or particular description given by HPS
is an opinion only. HPS is not giving or
implying any warranty or representation as to the
quality, state, condition or fitness of the goods.
The Customer takes all goods with all faults and
imperfections and if he does not accept the goods
on these terms he must return the goods immediately.
5 RECTIFICATION OF DEFECTS
(1) Provided that the Customer has fully complied
with clause (3) above and provided that HPS has
been afforded reasonable time and opportunity for
it to investigate any defects of which it has been
notified by the Customer and to examine the goods,
then HPS at its sole option and without
admitting any liability on its part may;
(i) replace the goods; or
(ii) accept the return of goods and to credit the
Customer with the price thereof future purchase of
goods from HPS; or
(iii) give the Customer an allowance representing
the difference between the value of the goods at
the time of delivery of the notification of defects
as specified in clause (3) and the purchase price
provided that the Customer pays the balance of the
purchase price after deduction of the said
allowance not in dispute according to normal terms.
(2) HPS has no liability under this clause if;
(a) the Customer has not paid in full all invoice
for goods supplied by HPS or any other monies due
to HPS.
(b) HPS’s representatives are at any time denied full and free access to the goods.
(c) Persons other than HPS or those approved or
authorised by HPS have effected or attempted to
effect any replacement of parts or to carry out
any maintenance of adjustments or repairs to or
otherwise interfere with the goods.
(d) The Customer has or has not properly maintained
the goods in accordance with instructions,
pamphlets or directions available, given or issued
by HPS or the manufacturer of the goods from
time to time.
(e) The Customer has used any spare parts or replacements
not manufactured by or on behalf of
HPS and supplied by it or fails to follow HPS’s
instructions for the use of the same.
(f) The claim by the Customer falls outside of the
90 day warranty, or the ambit of any warranty
given by the manufacturer of the goods. No warranty
whatsoever is applied to second hand parts.
(3) Notwithstanding that credit may have been given
by the Customer for the payment of the
purchase price of the goods HPS is entitled to retain
possession of the goods until full payment of all
monies owed to HPS.
(4) In addition to any right of lien to which HPS
may be entitled, HPS is, in the event of Customer
insolvency, bankruptcy or liquidation, entitled to a general lien on all of the Customers goods in
HPS’s possession
notwithstanding any or all such goods have been paid for until all outstanding
monies due to HPS have been fully paid.
6 LIMITATION
OF HPS’s LIABILITY
(1) Subject
to clause (2) below, HPS has no liability of any kind whatsoever to the Customer
in
respect of any
loss or damage whether direct, indirect or consequential, suffered by the Customer.
(2) Clause (1)
does not apply of HPS’s negligence for death or bodily injury in respect of any
goods
supplied by
HPS.
(3) The
Customer indemnifies HPS against all claims made against HPS by a third party arising
out
of any goods
supplied to the Customer.
(4) Any forbearance
or indulgence by HPS shown or granted to a Customer whether in respect of
these conditions
or otherwise shall in no way affect or prejudice the rights of HPS against the
Customer or
to be taken as a waiver of any of these conditions or HPS’s rights.
(5) It is the
responsibility and duty of the Customer to take out and thereafter maintain at its
own
cost a policy
of insurance for all risks sufficient to reimburse HPS any amount outstanding
to HPS
and all consequential
loss incurred by HPS.
(6) The Customer
must, on demand produce to HPS such policy of insurance and satisfactory
evidence that
the policy remains in force as HPS deems necessary.
7 DELIVERY
(1) The goods
shall be delivered or be deemed to be delivered to the Customer when they are
available for
collection from HPS’s premises or actually delivered to the Customer’s address at
HPS’s option.
(2) HPS undertakes
to use its reasonable endeavours to deliver the goods in accordance with clauses
(1) above on
the agreed date. Any stipulation of a delivery date by HPS is an approximate date
only
and the Customer
acknowledges that no guarantee is given.
(3) Time of
delivery is not of the essence of the Contract and these conditions.
(4) Delivery
times are conditional and subject to receipt by HPS of all proper and coherent
instructions
by the Customer within such period (where none is quoted) as shall be reasonable.
If
delivery is
delayed or hindered as a direct or indirect result of the Customer’s instructions
or lack of
them, or if
work on the Customer’s order is suspended on the Customer’s instructions or because
of
the lack of
such instructions, the purchase price of the goods will be increased to cover any
expense,
which may
be incurred by HPS.
(5) If the Customer
fails to accept delivery of the goods HPS is entitled (without prejudice to its
other rights)
to store and insure the goods and to charge the Customer the cost of so doing.
Delay in
acceptance will
not in any way affect the liability of the Customer to pay the purchase price of
the
goods.
(6)(a) If delivery
under the Contract is by instalments, then each delivery is deemed to be a separate
Contract.
(b) Any failure,
delay or defect in respect of any delivery does not entitle the Customer to
treat the
Contract as
repudiated.
8 VALUE ADDED
TAX
Unless otherwise
specified Value Added Tax and any other tax, duty or levy payable by the
Customer
shall be added to the purchase price calculated as at the date of delivery.
9 QUOTATIONS
AND VARIATIONS TO THE CONTRACT
(1) Any quotation
given by HPS does not constitute an offer. HPS reserves the right to withdraw or
revise any quotation
prior to despatch, having given the Customer reasonable opportunity to
withdraw or
revise their order.
(2) HPS at its
sole discretion reserves the right to amend the terms of the Contract and/or the
purchase price
as a result of one or more of the following variations occurring.
(i) specification
or description of the goods at the request of, or with the agreement of the Customer.
(ii) wage rates,
working conditions, cost of materials, transport, taxation, government levies or
increases in
manufacturers prices of parts or whole goods.
(iii) work
that is required to be done outside normal working hours or days.
(iv) suspension
or delay of sitework for reasons outside the control of HPS.
(v) additional
transport, storage or handling of goods resulting from the Customer being unable
or
willing to
accept delivery of the goods in accordance with the Contract.
(vi) failure
by the Customer to comply with any other clause of these conditions.
(vii) additional
quantities of materials supplied or labour involved.
10 PAYMENT OF
THE PURCHASE PRICE
(1)(a) The purchase
price in respect of the goods must be paid on or before delivery.
(b) In respect
of Customers who hold credit account facilities with HPS, payment shall be made
on
or before the
end of the calendar month next following the month during which the invoice is
dated.
(2) Interest
will accrue daily on overdue accounts at the rate of 2% per month.
(3) In the event
of default in payment of the purchase price or any instalment thereof, the Customer
immediately
loses the benefit of any previously agreed special terms.
(4)(a) Where
payment is by instalments, HPS is not bound to take any step in performance of the
Contract until
the Customer has paid the first instalment.
(b) If the Customer
defaults in payment of the second or any subsequent instalment, then;
(i) HPS is entitled
(at its option and without prejudice to any other remedies) to suspend or terminate
its performance
of the Contract.
(ii) the Customer
must
(a) forthwith
procure a bank guarantee in favour of HPS upon such terms and for such amount as
HPS
requires.
(b) return the
goods to HPS or make them available for collection.
(5) The equitable
and beneficial ownership of all materials supplied by HPS shall only be
transferred
to the Customer when the Customer has met all that is owing to HPS on whatever
grounds.
11 RISK AND
PASSING OF PROPERTY (RETENTION OF TITLE)
(1) Risk in
the goods passes to the Customer on delivery or on appropriation by HPS of the goods
pursuant to
the Contract in an event of the Customer being unable or unwilling to accept
delivery.
(2) Until the
purchase price has been paid, the Customer has possession of the goods only as
Fiduciary and
bailee for HPS and shall store and mark the goods in such a way as to enable them
to
be easily identified
as the property of HPS.
(3) If the Customer
is purchasing the goods for resale, he may, as agent for HPS sell and deliver
the
goods to a third
party provided that such sale and delivery is in the ordinary course of the
Customer’s business and on condition that until payment in full of the purchase price is made, the
Customer
holds all gross proceeds of sale on trust for HPS and in a separate account in the
name of
HPS and the
Customer. The Customer hereby irrevocably assigns to HPS all rights and claims (but
not liabilities)
which the Customer may have against its customers arising from such sales until
payment of the
purchase price.
(4) If the goods
are combined with other items or materials, or utilised or consumed in the
production or
manufacture of other items, materials or goods (resulting goods) HPS shall have
legal
and beneficial
ownership of the resulting goods and the Customer must:
(a) store such
resulting goods in the manner set out in clause (2) above until sale by the Customer
in
the ordinary
course of business upon the same terms or
(b) may sell
and deliver such resulting goods to a third party subject to the provisions of this
clause
12.
(5)(a) HPS
reserves the right to re-possess any goods if any payment due to HPS is overdue.
(b) Thereafter
HPS may resell the goods and for this purpose the Customer hereby grants an
irrevocable
right and licence to HPS to enter upon all or any of its premises, with or without
vehicles
during
normal business hours.
(c) This right
shall continue notwithstanding the termination of the Contract for any reason and
is
without prejudice
to any accrued rights of HPS thereunder or otherwise.
(6)(a) Until
full payment of the purchase price has been made the Customer must, at his own
expense keep
the goods insured in the joint names of the Customer and HPS, with such period
and
amounts upon
such conditions and with such insurance company as HPS shall in its absolute
discretion think
fit.
(b) The Customer
must forthwith on demand produce to HPS the policy of insurance, and
satisfactory
evidence that the policy remains in force, as HPS deems necessary.
(c) In the event
of default by the Customer in complying with clause (a) and/or (b) above, HPS may
take out such
insurance as it deems fit in respect of the goods. The cost is hereby acknowledged
by
the Customer
as a debt payable by the Customer to HPS.
(7) The Customer
must pay all accounts in full and must not exercise any right of set-off or
counterclaim against HPS’s invoices.
12 ASSIGNMENT
OR SUB-LETTING
(1) The Customer
must not assign or attempt to assign the Contract or any part of it, or any benefit
or interest
therein, or thereunder without the prior written consent of HPS.
(2) HPS reserves
the right to assign the Contract and/or sub-Contract, all or any part of the goods
supplied under
the Contract as it may in its absolute discretion think fit.
13 FORCE
MAJEURE
HPS is not liable
to the Customer for any loss or damage which may be suffered by the Customer as
a direct or
indirect result of the increased cost and/or delay, or failure to supply goods,
and/or HPS
being prevented,
hindered, delayed, by reason or circumstances, or events beyond the reasonable
control of HPS,
including but not limited to Act of God; War; Riot; Civil disobedience; Strike,
lock-out, trade
dispute or labour disturbance; Accident, breakdown of plant or machinery; Fire;
Flood; Storm;
Difficulty or increased expense in obtaining workman, materials or transport, or
other circumstances
affecting the supply of goods or raw materials by HPS’s normal source of
supply, or the
manufacture of the goods by HPS’s normal route or means of delivery.
14 INSOLVENCY
AND DEFAULT
(1) The Contract
is deemed to terminate immediately prior to the occurrence of any one or more of
the following
events:
(A) If the Customer:
(i) enters into
a deed of arrangement
(ii) commits
an act of bankruptcy
(iii) compounds
with his creditors
(iv) has a receiving
order made against him, or if (being a company) an order is made or a resolution
is passed for
the winding up of the Customer (unless for the purposes of amalgamation or
reconstruction).
(v) commits
any breach of or any term or condition of this or any other Contract between HPS
and
the Customer.
(B)(i) If a
receiver is appointed of any of the Customers assets or undertaking
(ii) if circumstances
arise which entitle a court or a credit to appoint a receiver or manager, or which
entitle the
court to make a winding up order, or if the Customer takes or suffers any similar
or
analogous action.
(2) In the event
of termination of the Contract, HPS may, without prejudice to any other rights
(a) stop any
goods in transit and/or suspend further deliveries, and/or determine the rights
of the
Customer under
condition 10
(b) by notice
in writing to the Customer or the receiver or liquidator or to any person in
which the
Contract may
have become vested, determine the Contract and/or
(c) give to
such receiver, liquidator or any other person, the option of performing the Contract
subject to his
providing a guarantee for the due and faithful performance of the Contract.
15 LICENCES
AND CONSENTS
(1) If any licence
or consent of any government or other authority is required for the purchase,
acquisition,
carriage or use of the goods by the Customer, the Customer must obtain the same
at his
own expense,
and if necessary produce evidence of the same to HPS on demand.
(2) Failure
to procure and/or produce any relevant licence and/or consent shall not entitle
the
customer to
withhold or delay payment of the price. The customer hereby indemnifies HPS
against
any additional
expenses incurred by HPS as a result of such failure.
16 STATUTORY
REQUIREMENTS AND INFRINGEMENT OF PATENTS
Every effort
is made by HPS to meet known statutory requirements and not to infringe any patents
or trademarks
belonging to third parties, but no guarantee is given that the design,
construction and
quality of the
goods to be supplied under the Contract comply with all relevant requirements or
any
statute, statutory
rule or order, or any other instrument having the force of law, and which may be
in
force at
the time of supply, nor that the sale or use of the goods by the buyer would not
infringe any
British Patent,
Trademark, tradename or registration design.
17 NOTICES
Any notice hereunder
shall be deemed to have been duly given if sent by prepaid first class post,
telex or facsimile
machine to the party concerned, and in the case of HPS its main office, and in the
case of the
Customer at the address on its order or on HPS’s invoice. Notices sent by first
class post
shall be deemed
to have been given, three days after despatch and notices sent by telex or
facsimile
machine shall be deemed to have been given on the date of despatch provided it is actually proven to
have been served
during normal working hours.
18 PROPER LAW
These conditions
and any Contract shall be constructed in accordance with English Law, and the
parties submit
to the non-exclusive jurisdiction of the English Courts. English Law shall be the
proper law of
the Contract. All claim under the Contract shall be settled by reference to the
English
legal system.