In these conditions:-
1.1. “Company” shall mean M A Hydraulics (Company Registration Number 03626039);
1.2. “Customer” shall mean the other contracting party;
1.3. “Products” means and include all the goods and/or services supplied by the Company pursuant to the Contact;
1.4. “Order” shall mean the order placed by the Custtomer with the Company for the Products;
1.5. “Contract” shall mean the Contact made between the Customer and the Company for the Products; this is formed when the Company accepts the Order; and
1.6. “Conditions” means the terms and conditions set out in this document and any special conditions agreed in writing by the Company.
2.1. These Customer shall apply to all Contracts for the sale and supply (as appropriate) of Products by the Company to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document. . All Orders shall be deemed to be placed subject to the Conditions and no variation of these Customer is applicable unless expressly accepted in writing by the Company. All Orders for Products shall be deemed to be an offer by the Customer to purchase Products subject to these Conditions. The Company’s acknowledgement of receipt of the Order shall not be constitute such acceptance. Acceptance of delivery of the Products shall be deemed conclusive evidence of the Customer’s acceptance of the Conditions.
2.2. If individual terms become null and void, all others shall remain unaffected.
2.3. The headings in these Customer are for information only and shall not affect the interpretation or construction of the Contract.
Any quotation is valid for a period of thirty (30) days from the date of the quotation, unless otherwise stated or unless revoked by the Company and in any event, the Order is subject to acceptance by the Company in accordance with Clause 2.1 above.
Unless otherwise stated, all prices are ex works excluding packing, insurance and carriage which will be charged extra. All prices are exclusive of Value Added Tax, which will be charged at the rate current at the time of delivery.
5. PRICE ADJUSTMENTS
All prices listed or quoted by the Company are based on costs prevailing at the time when those prices are published or otherwise stated. The Company reserves the right at any time prior to delivery to vary the price quoted for the Products if the following the date of quotation, the is any change in the rates of exchange, any imposition of Government tax, any increase in the cost of labour or materials, or the cost of supplying the Products increased by any factor beyond the control of the Company.
Unless otherwise agreed, payment is to be made against the Company’s invoice, and payment shall be net cash within 30 days from the invoice date. Any sums not paid within that time shall be subject to an interest charge at the rate of 4% above the Base Lending Rate of National Westminster Bank plc. From time to time compounded monthly on all amounts overdue until payment, such interest to run day to day to accrue after as well as before any judgement. Time for payment shall be of the essence. If the Customer fails to make any payment on the due date then without prejudice to any of the Company’s other rights the Company may suspend or cancel deliveries of any articles to the Customer and/or appropriate any payment made by the Customer to such of the Products (or Products supplied under any other contract with the Customer) as the Company may in its sold discretion think fit.
7. DELIVERY AND RISK
7.1. Subject to the following sub clauses of this clause 7, all risk shall pass to the Customer upon delivery of the Products to the Customer.
7.2. Unless otherwise specified delivery shall be deemed to take place when the Products have been delivered to the Customer’s carrier (whether or not arrangements for carriage have been made by the Company) or where agreed, to the Customer’s premises or other specified delivery point in the UK or FOB UK Port or airport, if ultimately for despatch overseas.
7.3. All dates and times run from the acceptance by the Company of the Order or the date of receipt of all the necessary information, drawings and inserts to enable the Company to initiate manufacture whichever is the latter. The Company shall not have any liability for delay or for any damages or losses sustained by the Customer as a result of such dates or times not being met. The Customer shall not be entitled to refuse acceptance of the Products as a consequence of such delay. The Company may make partial deliveries.
7.4. The Company may in its absolute discretion withhold delivery pending payment of any sum due from the Customer to the Company under any prior contract or contracts.
7.5. If the Customer does not accept delivery of a consignment of Products at the agreed date, then:-
7.5.1. The Company shall be entitled to claim payment in accordance with Clause 6 above relating to the Products refused;
7.5.2. The Products refused shall be in all respects at the Customer’s risk; and
7.5.3. The cost of storing the Products shall be borne by the Customer.
8. DAMAGE OR LOSS IN TRANSIT
The Company will at its discretion either refund cost or replace or repair free of charge any Products proved to the Company’s reasonable satisfaction to have been lost or damaged in transit up to the moment of delivery, provided that within three days of receipt of the Products in the case of damage, or within ten days of receipt of invoice in the case of loss, the Customer notifies both the carrier and the Company in writing of the nature and extent of the damage/loss. The Company accepts no liability for delay in transit. Unless the Products are checked on receipt, the carrier’s documentation should be endorsed ”unexamined”.
9.1. The Customer shall acquire title to the Products only when payment has been received by the Company in accordance with clause 6 hereof or for the purposes of clause 9.3 below.
9.2. Until property in the Products passes to the Customer in accordance with clause 9 1 above the Customer shall hold the Products and each of them on a fiduciary basis as bailee for the Company. The Customer hall store the Products separately from other goods in its possession and marked in such a way that they are clearly identified as the Company’s property. Until such time as property in the Products passes from the Company to the Customer, the Company may enter upon the premises owned occupied or controlled by the Customer where the Products are situated and repossess the Products.
9.3. In the event of seizure by a third party or any other act of a third party affecting the Company’s interest in the Products, the Customer shall notify the Company immediately.
9.4. Until the Company becomes entitled to terminate the Contract pursuant to clause 14, the Customer shall have the right to sell or otherwise dispose of the Products, but only for its own account and not as the agent of the Company, The Customer shall hold in trust for the Company the proceeds of such disposals including such proportion of the proceeds of disposals of higher -level assemblies in which Products are embodied as represents the sum to the Company in respect of Products so embodied. In exercising the right to sell or otherwise dispose of the Products, the Customer shall maintain the date labelling of Products.
10.1. The Products will be supplied generally in accordance with the Company’s relevant proprietary specification (the “Specification”). The Company will not accept liability for any Products supplied at variance to the Specification, except as set out in clauses 11and 12 below.
10.2. Subject to the Specification, descriptions and illustrations contained in the Company’s catalogues shall not form part of the Contract.
10.3. All Specifications drawings and technical descriptions submitted with or in connection with any quotations or acknowledgement of the Company are the Company’s copyright. All such copyright material and all information or
“know-how” whenever supplied shall at all times be treated by the Customer as confidential and shall not without consent of the Company be used by the Customer except for the purpose of the Contract and the operation of the Products, nor shall they without consent of the Company be communicated to third parties, save insofar as may be necessary for the purposes stated above.
11.1. Any Products which are found to be Company’s satisfaction to be defective as a result of faulty design, manufacture or workmanship will at the sole discretion Company be replaced free of charge or repaired free of charge Provided that:-
11.2. The Products ( or samples thereof showing the alleged defects) are returned properly packed and carriage paid to the Company’s works in the United Kingdom at the Customer’s risk within 12 months from the date of delivery as defined in Clause 7.
11.3. Date code labelling has been preserved.
11.4. The Products have not been misused, mishandled, overloaded or modified in any way by the Customer, or used for any purpose other than that for which they we designed; and
11.5. If the Products have been manufactured to the Customer’s design, the defects are not a result of faulty design by the Customer.
11.6. Repaired or replaced goods will be returned free of charge to destinations on the mainland of the United Kingdom or delivered FOB UK port or airport for other destinations.
11.7. In the case of Products not of the Company’s manufacture, any warranty shall be limited to that given to the Company by the manufacturer.
12.1. The warranty given in Clause 1 labove is the only Warranty given by the Company. All other claims ( other than claims for death personal injury attributable to the negligence of the Company, its agents or employees) relating to Any express or implied warranties or conditions as to equality and fitness for purpose of the Products, are hereby expressly excluded to the extent permitted by law. Unless specifically agreed, the Company does not warrant that the Products are suitable for any particular application.
12.2. The Company shall not be under any liability for any contingent or consequential loss, damage or injury or loss of profit to the Customer however arising.
12.3. The Company shall not be under any liability for infringement arising from the combination of any Products with items not supplied by the Company.
12.4. Except in the case of death or personal injury caused by the Company’s negligence, the Company’s total liability for any breach or series of connected breaches shall not under any circumstances exceed the purchase price of The Products.
Without prejudice to any claim or right it might otherwise make or exercise, The Company shall have the right forthwith to terminate the Contract by summary written notice and claim for any losses, costs or expenses thereby incurred In the (including failure to make payment in accordance with clause 6, time being of the essence in that respect), or if the Customer makes or offers to make any arrangement or composition with creditors or commits any acts of bankruptcy, or petition or receiving order in bankruptcy is presented or made against the Customer, or if the Customer is a limited company and any resolution or petition to wind up such company is passed or presented otherwise than for reconstruction or amalgamation, or if a receiver of such company’s undertaking, property or assets or any part thereof is appointed. In the event of the Company determining the Contact by summary notice, it shall be lawful for The Company to enter upon the Customer’s premises or any other premises where the Products are situated and take possession of the Products to which the Company has title.
14. FORCE MAJEURE
14.1 The Company shall not be under any liability to the Customer for any breach of any provision hereof or failure on its part to perform any obligation as a result of a force majeure which for the purposes of these Conditions shall Mean and include acts of God, war, (whether declared or not), sabotage, riot, explosion, Government control, restrictions or prohibitions or any other Government act or omission whether local or national, fire, accident, Earthquake, storm, flood, epidemic, drought or other natural catastrophes, inability to obtain equipment, suitable raw materials, components, fuel power or transportation, disputes with workmen, strikes, or lockouts, shortage of labour or any other cause beyond the control of the Company
14.2. If the Company is unable to perform any of its obligations under the contracts by reason of any of the causes referred to in clause 14.1 above, then it shall forthwith notify the Customer of the estimated extent and duration of Such inability.
These Conditions supersede all previous conditions, understandings, commitments, agreements or representations whatsoever, whether oral or written, and shall not be varied except with the Company’s written consent.
Any notice required to be given hereunder shall be sufficiently given by registered post or fax to the recipient at its registered office or last known address and shall be deemed to have been deemed served at the time when in the Ordinary course of transmission.
17. GOVERNING LAW
These Conditions and the Contract shall be governed construed and shall take effect in accordance with the laws of England, and shall be subjected to the jurisdiction of the English courts.
18. AMENDMENTS OR CANCELLATIONS
Once accepted by the Company, no Order can be amended or cancelled except with the Company’s written approval and upon terms which the Company specifies against any losses including loss of profit or additional costs resulting Therefrom. In particular, additional costs incurred because of any alterations made at the Customer’s request to quantities, delivery dates, rates or specifications shall be borne by the Customer.
Any Contract entered into by the Company shall be regarded as severable in the event of Products being of different kinds or the Contact providing for delivery by instalments. Each and every delivery of separate items under the Contract shall be regarded as being made under a separate Contact and damages arising from alleged breach of Contract shall be limited accordingly.
20. RIGHTS OF THIRD PARTY
A person who is not party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of Contract.