TERMS AND CONDITIONS OF SALE AND SUPPLY
Attention is drawn to the Terms and Conditions set out below. They are binding on all customers and govern the sale of goods/services by Hydraulic System Products Limited.
In these terms and conditions (the “conditions”) the following words and expressions shall have the following meanings:
1.1 “Seller” means Hydraulic System Products Limited whose registered office is situated at: Unit 9, Station Court, Park Mill Way, Clayton West , Huddersfield, HD8 9XJ
1.2 “Contract” means the contract for the sale of goods or services by the seller to the buyer;
1.3 “Buyer” means any individual, firm, company or other party who buys or agrees to buy the goods;
1.4 “Goods” means any item of whatsoever nature or part thereof or service which is to be sold or supplied by the seller to the buyer;
1.5 “Order” means the order placed by the buyer for goods;
1.6 “Price” means the price of the goods.
ORDER AND ACCEPTANCE
2.1 The Contract shall be formed by the sellers written acceptance of the order. Unless expressly varied by a director of the seller in writing these conditions shall apply to the contract to the exclusions of all other terms and conditions including any terms or conditions which the buyer may purport to apply.
2.2 All quotations issued by the seller are provisional and may be altered by the seller at any time to take account of any changes taking place between the date of quotation and the sellers acceptance of the order in the price of raw materials, rates of wages and other costs of productions or in the buyers specification or in the event of the order being for part only of the quantity referred to in the quotation or estimate.
2.3 Any samples given by the seller correspond with the goods as far is reasonably possible given the nature of the goods but this is not a sale by sample and the samples are not to be treated as forming part of the contract.
2.4 Any advice or recommendations given by the seller, its employees or agents as to the storage, application or use of the goods, which is not confirmed in writing by a director of the seller is followed or acted upon entirely at the buyers own risk.
3.1 The price shall be as notified by the seller to the buyer on acceptance of the order. Unless otherwise stated in writing, the price includes basic packaging but excludes freight, delivery charges, insurance, VAT and other applicable taxes, duties or levies of any kind whatsoever.
3.2 The price is based on, amongst other things, materials, labour and transport costs and statutory obligations applying at the date of the seller’s acceptance of the order. If before delivery there is any increase, howsoever arising, in the cost to the seller of supplying the goods, the seller shall be entitled to alter the price by such amount as is reasonable to take account of the increases.
3.3 If the buyer cancels any order the seller should be entitled to:
3.3.1 Recover from the buyer any loss incurred by the seller as a result.
3.3.2 Make a cancellation charge of 15% of the price.
4.1 The time of payment of the price shall be of the essence.
4.2 The Price shall be deemed to become due immediately upon the commencement of any act or proceedings in which the buyer’s insolvency is involved.
4.3 The price shall be paid 30 days from the date of invoice.
4.4 The buyer shall not be entitled to make any deduction from any payment due to the seller in respect of any set-off or counterclaim unless both the validity and the amount of the set-off or counterclaim have been expressly admitted in writing by the seller.
INTEREST ON OVERDUE ACCOUNTS
5.1 If payment of the price or any part of the price or any other sums payable by the buyer is not made in accordance with the Condition 4 then the seller shall charge interest on the outstanding amount at the rate of 4 percent per annum above the base rate from time to time of the seller’s bank calculated on a daily basis until payment is made. This is without prejudice to the seller’s other rights.
TRANSFER OF PROPERTY
6.1 Property in the Goods shall remain with the Seller until (i) Payment in full has been made to the seller for all monies owing in respect of all goods delivered under the contract; and (ii) No other sums whatever shall be due from the buyer to the seller.
6.2 Until property in the goods passes to the buyer it shall hold the goods (at no cost to the seller) in a fiduciary capacity for the seller in a manner which enables them to be identified as the goods of the seller and the buyer shall immediately return the goods to the seller should it so request.
6.3 If the buyer shall, before the property in the goods has passed, use the goods in the manufacture or production of items or raw materials, whether or not in association with other goods, or if the goods are mixed with other goods, the items or materials or mixtures so produced (the new goods) shall become the property of the seller. The property in the new goods shall pass to the seller at the moment of manufacture or mixing but the new goods shall be at the buyer’s risk and the buyer should be insured accordingly. Until the payment of all monies owing by the buyer to the seller the buyer shall hold the new goods (at no cost to the seller) in a fiduciary capacity for the seller in a manner which enables them to be identified as the goods of the seller and the buyer shall immediately deliver the new goods to the seller should it so request.
6.4 The buyer grants the seller an irrevocable licence to enter at any time any vehicle or premises owned or occupied by the buyer or in its possession for the purpose of repossessing and removing any goods and new goods the property in which vests in the seller. The seller shall not be responsible for and the buyer will indemnify the seller against any liability in respect of damage caused in such repossession and the removal being damage it was not reasonably practicable to avoid.
6.5 Notwithstanding Conditions 6.2 and 6.3 the buyer shall be entitled to offer for sale and sell the goods and the new goods at the best obtainable price in the ordinary course of its business. Any such sale or dealing shall be a sale or sue of the sellers property by the buyer on the buyer’s own behalf and the buyer shall deal as principal.
The buyer shall hold any claim against sub buyers in respect of such sales on trust for the seller. The seller shall be legally and beneficially entitled to the proceeds of sale and the entire proceeds of sale or otherwise of the goods and the new goods shall be held in trust for the seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the sellers money.
The seller sells any new goods and the sale proceeds and exceeds the amount owing by the buyer to the seller: or
The proceeds of sale of new goods identified as the seller’s money pursuant to Condition 6.5 exceeds the amount owing by the buyer to the seller; then the seller shall apply the balance of the proceeds of sale as follows:
(i) First, if applicable in reimbursing the seller the cost and expense of the taking of possession and the sale of the new goods and any damages which the seller has suffered as a result of any repudiation of contract by the buy; and
(ii) Secondly, paying any sums due and owing to other creditors of the buyer in respect of other items and materials used in connection with the manufacture of the new goods where the property in such items and materials has remained vested in other such creditors by reason of effective reservation of title clauses and the claims of such other creditors pursuant to such reservation of title clauses have been notified to the seller by the buyer or its liquidator, administrator or receiver or by such other creditors.
RISK AND INSURANCE
7.1 Subject as provided below the goods are at the buyer’s sole risk (and the buyer shall insure the goods to their full value) from the moment of appropriation of the goods to the contract except to such extent (if any) as the seller may have the benefit of insurance against such risk.
7.2 The seller will be under no obligation to effect insurance of the goods once risk has passed to the buyer.
7.3 If the seller stores, transports or works on any goods or other property (including goods about to be delivered by the seller or goods intended for the incorporation in or use in contract goods or services) belonging to the buyer or any third party the seller does so (and they are packed and carried) at the buyer’s sole risk and (except as provided in these conditions) the seller shall have no liability to the buyer or any other party for loss, deterioration or damage to such goods or other property howsoever arising and whether by negligence or otherwise.
8.1 Time of delivery shall not be of the essence and any dates quoted for delivery are approximately only. Any stipulated time for delivery shall date from the acceptance by the seller of the order or, if later, the receipt by the seller of all the necessary information, drawings, specifications and models to enable the seller to provide the goods.
8.2 Unless otherwise agreed in writing by the seller the buyer shall take delivery of the goods or any instalment thereof at the place or port of shipment
specified by the seller on acceptance of the order. If the seller makes a contract of carriage and/or arranges for insurance of goods in transit then the seller
shall be deemed to be acting as the buyer’s agent and Section 38(2) and 38(3) of the Sales of Goods Act 1979 shall not apply.
8.3 Where the goods are delivered in instalments, each instalment shall constitute a separate contract to which the conditions shall (with any necessary
8.4 Without prejudice to any rights of the seller, if the buyer fails to provide all necessary instructions, documents, licences, consents and authorities for
forwarding or delivering the goods on or before the time the seller is ready to deliver the goods or causes delivery to be delayed for any other reason, the
buyer shall pay all storage and other costs incurred by the seller arising from such a delay.
8.5 Differences in the quantity of the goods delivered from those stated in the contract shall not give the buyer a right to reject the goods and the buyer shall
have no right to claim damages for breach of contract but the buyer will only be obliged to pay the contract rate for the quantity of the goods delivered.
LIMITATION OF LIABILITY
9.1 The sole liability of the seller in respect of any defect in any of the goods supplied or for any shortage in quantity of the goods delivered or for any loss,
injury or damage attributable, directly or indirectly, thereto is limited to a period of twelve calendar months only from the date upon which the goods are
delivered or the services provided and is limited to EITHER: -
(i) Making good by replacement or re-performance of the services; or at the option of the seller.
(ii) Repair defects which appear under proper use therein
in addition the seller must be reasonably satisfied that such defects or failure arose solely from defective materials used or workmanship.
9.2 No liability shall attach to the seller unless it is notified in writing within seven days of the alleged defect failure or shortage and, if the seller shall so
require, the defective goods or part thereof are promptly returned to the seller carriage paid.
9.3 If, without prior written consent of the seller, repairs or alterations are made to the goods, the seller shall be under no liability in respect of the goods.
9.4 Except as provided in conditions or warranties, whether express or implied, statutory or otherwise in relation to the goods are hereby expressly excluded
save that nothing herein shall have the effect of excluding or restricting the liability of the seller for death or personal injury resulting from its negligence
insofar as the same is prohibited by the United Kingdom statute.
9.5 Without prejudice to the generality of the foregoing, the seller shall in no circumstances be liable for: -
(i) Any indirect or consequential loss (including without limitation loss of production, loss of profit or liability to third parties) suffered or incurred by the buyer
or others; or
(ii) Any loss or damage in excess of the price for the goods or services or part thereof on respect of which a claim is made; or
(iii) Any malfunction or non function for any goods to the extent that this is caused by fair wear and tear or any fault or damage arising from impact,
modification, inappropriate use or treatment, incorrect handling or exposure to corrosive substances or substances otherwise injurious to the goods or their
10.1 The buyer shall (and shall ensure that any third party to whom any goods may subsequently be supplied) comply with all instructions of the seller and
any other manufacturer in relation to the use of the goods, and notwithstanding such compliance, the buyer shall keep the seller fully and effectually
indemnified against all cost, claims, demands, expenses and liabilities of whatsoever nature and whatsoever arising, including, without prejudice to the
generality of the foregoing, claims for damage, to property and consequential loss (including loss of profit) which may be made against the seller or which
the seller may sustain, pay or incur arising out of or in connection with the incorrect, fitting installation or use of the goods.
10.2 Where goods are made to the buyer’s specification the buyer undertakes full responsibility for the suitability and accuracy of the specification and
undertakes to fully indemnify the seller against any loss, expense or other suffered by the seller as a result of any infringement of patent, registered design,
trade mark, trade name and copyright which it may incur by reason of such infringement in any country.
10.3 Where any work is to be carried out by the seller in connection with the installation, repair, servicing or testing of the goods the buyer shall make all
necessary preparations and provide suitable and safe access, protection of the goods from the time of delivery and all equipment, materials facilities and
labour required to enable the seller to perform its obligations and undertakes to fully indemnify the seller against any loss, expense or other suffered by the
seller as a result of any breach by the seller of this condition.
11.1 The seller shall be entitled to delay or cancel any contract if it is prevented from or hindered or delayed in the supply of goods through any
circumstances beyond its reasonable control including but not limited to strikes, lock outs, accidents or warfare.
DEFAULT AND BUYER’S INSOLVENCY
12.1 The seller may terminate the contract or cancel any outstanding delivery or stop any goods in transit (without prejudice or other remedies) if:
(i) the buyer breaches any of its obligations under these conditions or under any contract to which these conditions apply; or
(ii) There is any delay in making payments due under any contract to which these conditions apply; or
(iii) Any distress, execution or other legal process levied upon the buyer’s property; or
(iv) The buyer makes or offers to make any arrangement or composition with its creditors or commits any act of bankruptcy or if any petition or receiving
order is presented or made against the buyer or, if a company, any resolution or petition to wind it up or to appoint an administrator shall be passed or
presented or a receiver manager or administrative receiver of all or any of its assets shall be appointed.
12.2 Termination of any contract to which these conditions apply for whatever cause shall not affect the rights or remedies of either party in respect of any
prior breach or in respect of any sum of money owing or to become owing by the other.
13.1 The contract is personal to the buyer and the buyer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or
sub-contract any of its obligations under the contract.
13.2 The seller shall be entitled to sub-contract the contract or any part thereof without obtaining the consent of or giving notice to the buyer.
14.1 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its
registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party
giving the notice.
14.2 No waiver by the seller of any breach of the contract by the buyer shall be considered as a waiver of any subsequent breach of the same or any other
14.3 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part of the validity of the other
provisions of these conditions and the remainder of the provision in question shall not be affected.
14.4 The Contract shall be governed by the laws of England, and the buyer agrees to submit to the non-exclusive jurisdiction of the English courts.