THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 13
In these Conditions the following expressions shall have the meanings set forth below:
- the Company
- Huco Engineering Industries Ltd.
- the Conditions
- these terms and conditions as amended from time to time by the Company.
- the Contract Price
- the final price for the Goods as defined under clause 3.1.
- the Customer
- the person, firm or company whose Order is accepted by the Company.
- the Goods
- goods and/or related services or any part thereof of any description to be supplied or performed under the Contract.
- the Order
- the order or orders for Goods placed by the Customer upon the Company.
- the Contract
- the contract between the Company and the Customer arising on written acceptance from the Company of the Order subject to these Conditions of Sale.
1. FORMATION OF CONTRACT
- All Orders that are received by the Company shall be subject to the following Conditions.
- Any Order submitted by the Customer shall be deemed to constitute an offer by the Customer to purchase the Goods in accordance with these Conditions.
- The Order shall only be deemed to be accepted when the Company issues written or electronic acceptance of the Order (Order Acknowledgement) at which point and on which date the Contract shall come into existence subject to these Conditions (Commencement Date).
- All other terms, conditions or warranties introduced or implied previously by the Customer are excluded from the Contract between the Company and the Customer or any variation thereof to the fullest extent permitted by law.
- The Contract 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 Company which is not set out in the Contract.
- The Customer shall be fully responsible for ensuring that its needs and requirements are met and fulfilled with the detail it supplies within the Order. Under no circumstances shall the Company be responsible for, or be held liable in respect of, any statement or representation relied upon by the Customer which is not attached to or endorsed within the Order and subsequently confirmed in writing or electronically under the Order Acknowledgement by the Company.
- Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
- 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.
- All of these Conditions shall apply to the supply of both goods and any associated services except where application to one or the other is specified.
- Unless otherwise agreed in writing all trade terms shall be interpreted in accordance with INCOTERMS current at the time the Order Acknowledgement is sent.
- The quantity and description of the Goods shall be as set out in the Company's Order Acknowledgement.
- All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
- The Company reserves the right to alter or change dimension or composition of the Goods supplied to conform to applicable standards or laws or otherwise within reasonable time limits having regard to the nature of the Goods.
- Prices are as displayed on [site] and are subject to change or correction at any time and without notice.
- Unless otherwise indicated, all prices on Orders net ex works and exclusive of VAT or other taxes/duties, freight, and handling fees.
- Full payment for Goods shall be made at the time of Order entry.
- No payment shall be deemed to have been received until the Company has received cleared funds.
- Delivery of the Goods shall take place at the time and manner selected by the Customer at the time of Order entry.
- Time for despatch of goods is given as accurately as possible but is not guaranteed and time for delivery shall not be made of the essence by notice. The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay is caused by the Company and exceeds 180 days.
- The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Any delays or alterations by the Customer in design, specifications or quantities required may result in delay in delivery and the provisions of condition 5.2 shall apply.
- The price of the Goods includes normal packaging and such packaging is non-returnable unless otherwise agreed in writing.
- Any packaging to the Goods supplied by the Company, unless otherwise expressly agreed in writing, is intended to provide adequate protection in normal conditions of transit of usual duration.
- Returnable cases will be charged at cost price if not returned in good condition, carriage paid, to the Company’s works within three months of receipt by the Customer.
7. NON-DELIVERY & DAMAGE IN TRANSIT
- The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
- The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 working days of the date when the Goods would in the ordinary course of events have been received.
- Any liability of the Company for non-delivery of the 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 such Goods.
- Whilst the Company accepts no liability for damage or loss in transit when Goods are consigned via an independent carrier, the Company will use all reasonable endeavours to assist the Customer in pursuing claims for damage or loss in transit against a carrier provided that:
- damage or shortage is notified in writing both to the Company and to the carriers within 3 days of receipt of Goods and the Goods have been signed for as “not examined”, and have been handled by the Customer in accordance with carrier’s conditions (if any); or
- Non-delivery in the case of total loss is notified both to the Company and to the Carrier within 3 of the date when the Goods would in the ordinary course of events have been received.
8. RISK AND TITLE
- Title to the Good and risk of loss shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods upon tender of shipment to the carrier. If Goods are damaged in transit, Customer’s only recourse is to file a claim with the carrier.
- The Customer should contact the Company if it is not satisfied with any Good for any reason. The Company will promptly provide an exchange or refund if the Good is returned within 30 days of delivery, in its original packaging and with proof of purchase from the Company. The Customer should email [email protected] or telephone +44 (0) 1992 501900 providing Customer Name, Address, Order Number and Item Part Number to receive a Returns Authorisation Number.
- The Company or the Customer may cancel the Contract at any time prior to shipment by giving written notice by email to [email protected] On giving such notice the Company shall promptly repay to the Customer any sums paid in respect of the Goods, less any applicable restocking fees. The Company shall not be liable for any loss, damage, interest or cost whatsoever arising from such cancellation.
- The Company will use all reasonable endeavours to avoid any costs or liabilities where a cancellation notice has been submitted in accordance with condition 10.1; however any costs and expenses incurred by the Company up to the time of cancellation shall be the liability of the Customer and shall be paid forthwith by the Customer to the Company.
- All variations required by the Customer and accepted by the Company shall be agreed in writing and the price, if not agreed prior to the manufacture or delivery of the Goods, shall be based on the appropriate Contract Price (if any) plus escalation in respect of inflation and increased costs of materials and labour for the agreed variations.
- If the Company agrees to any variation any dates quoted for delivery shall be extended accordingly and the provisions of condition 5.3 shall apply.
- Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
- The Company warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery (as determined by condition 5.1), the Goods shall:
- Unless otherwise provided elsewhere in these Conditions be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
- be reasonably fit for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgment of the Company.
- The Company shall not be liable for a breach of any of the warranties in condition 12.2 unless:
- the Customer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 14 working days of the time when the Customer discovers or ought to have discovered the defect; and
- thereafter the Customer shall not use the Goods any further, and no alteration is to be made nor any interference made to the Goods before the Company has inspected the Goods in accordance with this Condition 12.3; and
- the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Customer’s cost for the examination to take place there.
- The Company shall not be liable for a breach of any of the warranties in condition 12.2 if:
- the defect in the Goods arises from any drawing, design or specification supplied by the Customer; or
- the total price for the Goods that has already been invoiced has not been paid by the Customer by the due date for payment under these Conditions; or
- the Customer makes any further use of such Goods after giving such notice; or
- the defect arises due to accident, neglect or misuse, unsuitable storage, incorrect installation, commissioning, use contrary to instruction, maintenance or repair of the Goods whether by the Customer or third party, the use of unsuitable lubricant, or damaging external influences of a physical, electro-chemical or chemical nature or otherwise in contravention of good trade practice; or
- the Customer alters or repairs such Goods without the written consent of the Company.
- Subject to condition 12.3 and condition12.4, if any of the Goods do not conform with the warranty in condition 12.2 the Company shall at its option repair or replace such Goods (or the defective part) within a reasonable time period or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Customer’s expense, return the Goods or the part of such Goods which is defective to the Company.
- If the Company complies with condition 12.5 it shall have no further liability for a breach of any of the warranties in condition 12.2 in respect of such Goods.
- The warranty in Condition 12.2 does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Customer shall only be entitled to rely upon and the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and which is under Condition 12.1 successfully transferred to the Customer.
- The Company shall not be liable for (and the Customer shall indemnify the Company against claims arising from) loss or damage suffered by reason of use of the Goods after the Customer becomes aware of a defect or of circumstances which should reasonably have indicated to the Customer the existence of a defect.
13. LIMITATION OF LIABILITY
WARNING – YOU ARE STRONGLY ADVISED TO READ THIS CONDITION
- Subject to condition 5, condition 7 and condition 12, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
- any breach of these conditions, including any deliberate breach of these conditions by a party, or its employees, agents or subcontractors;
- any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
- any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
- All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these conditions excludes or limits the liability of the Company:
- for death or personal injury caused by the Company's negligence; or
- under section 2(3), Consumer Protection Act 1987; or
- for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
- Subject to condition 13.2 and condition 13.3 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price.
14. SAFETY DEVICES
- It shall be the responsibility of the Customer to ascertain the requirements of its local factory inspector as to the proper guarding of the Goods and to ensure that such guarding is installed. Safety devices and guards supplied by the Company (otherwise than pursuant to a separate contract as provided below to supply guards to the requirements of the Customer's local factory inspector) will not necessarily meet the requirements of the Customer's local factory inspector and no warranty or representation is given or made that they comply with any statutory or other requirement and no liability is accepted by the Company in respect thereof.
- The Company is prepared to enter into a separate contract with the Customer to supply guards to the requirements of the Customer's local factory inspector and the price for such guards shall be charged extra when the full extent of such requirements is made known. In the event that the Customer does not wish to enter into such a contract with the Company the Customer will on request give the Company a written undertaking pursuant to Section 6(8) of the Health and Safety at Work Act 1974 to the effect that it will provide and install such guards so as to relieve the Company from any liability in respect thereof.
15. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
- All drawings, documents, confidential records, computer software and any other information whatsoever supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not, without the written consent of the Company, either give away, loan, exhibit, use or sell any such drawings, documents, records, software or other information or extracts therefrom or copies thereof or use them in any way except in connection with the Goods and for the purposes for which they were issued to the Customer.
- All claims for alleged infringement in respect of patents, trade marks, registered design, design right or copyright received by the Customer must be notified immediately to the Company and the Company must thereafter be kept fully informed of the conduct of such claims.
- The Customer shall not, without first obtaining the Company’s permission in writing, exhibit any of the Company’s Goods at any public exhibition or trade display in Great Britain or Northern Ireland.
- All tools, unless provided by the Customer, remain the property of the Company.
17. CUSTOMER'S DRAWINGS
- The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Company, either directly or indirectly by the Customer or by the Customer's officers, employees, agents, consultants or advisers, are accurate, correct and suitable. Examination or consideration by the Company of such drawings, information, advice or recommendations shall in no way limit the Customer's responsibility hereunder unless a director or other authorised representative of the Company specifically agrees in writing to accept responsibility.
- The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture of Goods to the drawings or specifications of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of a patent, copyright, registered design, design right, design copyright or other exclusive right.
- If the Customer shall become bankrupt, or under the provisions of Section 123 of the Insolvency Act 1986 shall be deemed to be unable to pay its debts, or compounds with creditors or in the event of a resolution being passed or proceedings being commenced for the administration or liquidation of the Customer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation), or if a receiver or manager is appointed of all or any part of its assets or undertaking, the Company shall be entitled to cancel the Contract in whole or in part by notice in writing without prejudice to any other right or remedy accrued or accruing to the Company.
19. FORCE MAJEURE
- In the event of the performance of any obligation accepted by the Company being prevented, delayed, or in any way interfered with by:
- direction of government, war, industrial dispute, strike, breakdown of machinery or plant, accident, fire or by any other cause beyond the Company's control; or
- non delivery by the Company's suppliers or damage to or destruction of the whole or part of the Goods, the Company may at its option defer delivery, suspend performance, reduce the quantity of the Order or cancel its obligations under the Contract without liability for any damage or consequential loss resulting therefrom such suspension or cancellation being without prejudice to the Company's right to recover all sums owing to it in respect of consignments delivered prior to the date of suspension or cancellation.
20. SPECIALS AND FREE ISSUE MATERIALS
- The Company gives no guarantee and accepts no liability in relation to the suitability of materials or design of Goods made specially to the Customer's requirements and differing from the Company's standard specifications (if any) even if the purpose be known to the Company.
- The Company accepts no responsibility for Customer's samples, drawings, tools and the like while in the Company's possession and the Company will not accept any claim for loss, breakages or damage to the same whatever the cause. The Customer shall be responsible for insurance cover in its own name and at its cost for the risks specified in this Condition 20.
- Where materials are supplied by the Customer to the Company such materials shall remain at the risk of the Customer at all times and the Company shall not be liable for the loss of, or damage to, any material during fabrication by the Company or by any sub contractor employed by the Company or whilst on the premises of the Company or of any such sub contractor or whilst in transit to or from the premises of the Company or of any sub contractor provided that the Company may, at its discretion, make a contribution towards the replacement costs of the material.
- Where materials are supplied by, or on behalf of, the Customer to the Company the Customer shall be responsible for ensuring that the material is of merchantable quality and is fit for its purpose and shall indemnify the Company against any loss, damage, injury or expense whatsoever arising directly or indirectly from any fault in or incorrect specification of the said material.
21. CONSUMER PROTECTION ACT 1987 ("the Act")
- In circumstances where the Company supplies Goods to the Customer for incorporation with, or any other use ancillary to, any other products to be produced, manufactured, processed or supplied by the Customer then:
- the Customer shall forthwith on demand produce for inspection by the Company copies of all written instructions, information and warnings to be supplied by the Customer in relation to the said other products, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval on the part of the Company of such instructions, information or warnings; and
- the Customer shall indemnify, reimburse and fully compensate the Company for all losses and damages (including costs, expenses and charges for legal actions in which the Company may be involved) that the Company may incur, or has to bear, in the event that any claim or claims are made against the Company pursuant to the Act or otherwise relating to the said other products of the Customer in circumstances in which the Goods supplied by the Company were either (i) not the defective part of the said other product, or (ii) only became defective by reason of acts or omissions of the Customer (including without limitation the supply of defective free issue materials), or (iii) only became defective by reason of instructions or warnings given by the Customer or other supplier of the said other products or (iv) were supplied in accordance with a specification and/or drawings furnished by, or on behalf of, the Customer.
- for the purposes of this Condition only the word "defective" shall be interpreted in accordance with the definition of 'defect' contained in Part 1 of the Act.
- The Customer hereby acknowledges that it is under a duty to pass on to its customers all instructions, information and warnings supplied to it by the Company with the Goods.
- The Contract is between the Company and the Customer as principals and under no circumstances shall the Customer assign the benefit or burden of it without the prior written consent of the Company. The Company shall be entitled to assign or sub contract the whole or part of its obligations under the Contract.
- If any provision of these Conditions or the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of these Conditions and the Contract and the remainder of such provision shall continue in full force and effect..
24. ATTENDANCE ON SITE
- Should the Company attend on the Customer's premises or on the premises of any purchaser from the Customer to perform any services in relation to the Goods then the Customer shall indemnify the Company in respect of all claims made, or proceedings taken, against the Company (and all damages and penalties awarded against or costs (including legal costs) incurred by the Company in connection therewith) by any third party including but not limited to the Company's employees, the Customer's employees or the employees of any contractor employed by the Customer or the personal representatives or dependents of such employees or other third parties in respect of death, personal injury or damage to property (including damage as a result of fire or explosion) caused by or arising out of any act or omission (negligent or otherwise) of the Company its employees agents or sub contractors whilst at or on such premises.
- The Contract shall be governed by and interpreted exclusively according to the Laws of England and shall be subject to the exclusive jurisdiction of the English Courts save to the extent that the Company may require to obtain injunctive relief outside such jurisdiction.
- All references to Statute in these Conditions of Sale refer to UK legislation.
- Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
- The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
- All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by fax:
- (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company in correspondence; or
- (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
- Communications shall be deemed to have been received:
- if sent by pre-paid first-class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
- if delivered by hand, on the day of delivery; or
- if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
26. EXPORT CONTROL REGULATIONS
- The Customer agrees to comply with all applicable export and re-export control laws, including, without limitation, laws related to the resale and disposition of the Goods (including required export licenses, clearances and consents), in connection with performing its obligations hereunder. The Customer warrants that it will not sell, transfer or support, directly or indirectly, or assist in any sale or transfer of any products or product technology in countries or to users concerning which such sale, transfer or support is not permitted under applicable law. The Customer shall defend, hold harmless and indemnify the Company for any damages resulting to the Company from a breach of this paragraph by the Customer.