1. WORDS AND PHRASES
In these conditions:
“CUSTOMER’S EQUIPMENT” means the equipment or material
belonging to you, or for which you request us to provide the Supply.
“SUPPLY” or “SUPPLIES” means the engineering services,
goods and associated supplies as set out in our quotation or other agreed
documents or discussions between us.
“We”, “us” and “our” mean Dowding
& Mills (UK) Limited. “You” and “your” mean
the person or company to which we are providing the Supply.
2. INCORPORATION OF CONDITIONS
a) Any contract or arrangement for Supplies made between you and us shall
be subject to these conditions, and any terms you put forward do not apply.
b) All other terms and conditions which might be implied by conduct or
a previous course of dealing or trade custom are excluded from this contract.
c) No amendment or change shall be made to these conditions of business
except by contract in writing signed by one of our directors.
3. QUOTATIONS/PRICES
a) Our quotation provides an indication to you of the terms on which you
may place an order, but no order from you as a result of a quotation (or
otherwise) shall be binding upon us unless and until it is accepted or
confirmed by us.
b) A quotation is made on the assumption that the specification or work
requested is reasonably
capable of being provided. If this is found in our opinion not to be the
case, we will advise you as
soon as reasonably practicable, and may offer you reconditioned or new
goods on terms to be
agreed (or service exchange, if available). Our prices are based on the
assumption that material
you supply is of satisfactory quality and free from defects.
c) If you give a general instruction for repairs without specifying the
particular service or replacement parts, we will be entitled to carry
out such repairs, modifications or service as in our opinion are necessary
to put the Customer’s Equipment in good working order, and to make
an appropriate charge for the work and parts provided.
d) Provided your order is placed within thirty days of the date of the
quotation, the price contained in the quotation shall be fixed unless
the quotation states otherwise. If your order is not placed in that period,
then if any change shall occur after that in the costs of any materials,
labour, transport or other items, including overheads which we have to
pay or incur for the performance of the contract, then you will pay the
resultant increased price.
e) If performance and delivery are postponed at your request or by circumstances
within your control you will pay all resulting costs and expenses we incur.
f) We will charge for all work carried out at your request, whether exploratory
or otherwise and, in particular, we reserve the right to instruct our
employees or agents to work overtime to comply with your delivery requirements
in which case we may charge you the cost of such overtime.
g) The contract shall be conditional on you procuring any export licence
required for the export
of the goods from the United Kingdom prior to the date of delivery.
4. WORK ON SITE
If the Supplies are to be provided on your premises or at your request
at some other site we will need free and safe access to the Customer’s
Equipment, together with proper and safe storage and protection of all
goods, tools, plant and equipment and materials we have on site. We may
also require preparatory work and additional facilities to provide the
Supplies. You will observe and comply with the latest Health and Safety
at Work legislation and obtain all necessary consents and licences and
ensure that the site is safe and without risk to the health and safety
of all persons working there; and you will hold us harmless against all
legal and regulatory proceedings, costs and charges in respect of your
failure to do so.
5. PAYMENT
a) Unless otherwise agreed with you by us, we will issue an invoice for
the full amount due on completion of the Supply. Invoices are due for
payment 30 days from the date of the invoice. All payments will be in
Pounds Sterling.
b) Unless otherwise agreed, overseas orders must be covered by a confirmed
irrevocable letter of credit drawn on a London clearing bank prior to
commencement of work.
c) If any payment is overdue, we shall be entitled without prejudice to
any other right or remedy to suspend all further deliveries on any contract
between us without notice and/or charge interest on any amount overdue
at the rate of 4% per annum above the base rate from time to time of HSBC
Bank plc, compounding monthly.
d) Goods shall remain our property until you have made full and unconditional
payment to us of all sums due.
e) Unless indicated otherwise, all sums payable under this contract are
stated exclusive of Value Added Tax (which will be charged at the rate
prevailing at the relevant tax point) and any other tax or duty chargeable
under any relevant legislation.
6. DESIGNS DRAWINGS AND SPECIFICATIONS
a) You shall be responsible for the completeness and accuracy of any designs,
specifications and other data which you or your employees or agents supply
to us and which we use in connection with the Supply, even if we examine,
inspect or comment upon them. You will hold us harmless against any liability
to a third party which we may incur as a result of carrying out the Supply
in accordance with your instructions or your designs, drawings, specifications
or other data.
b) You will respect the confidentiality and ownership of any of our copyright,
design right or other intellectual property rights in any technical information,
know-how, drawings, specifications or other documents disclosed by us
under this contract.
c) All recommendations and advice given without charge, whilst given in
good faith and with due care, are given without responsibility on our
part.
7. WARRANTY
a) We undertake to use reasonable skill and care in carrying out the work
and to use materials and supply goods which are of suitable quality and
free from defects.
b) Unless otherwise agreed, we will rectify defective work and/or replace
defective goods and materials notified to us in writing within six months
of delivery of goods or completion of the work. Liability for defective
work and/or defective goods or materials is limited to the invoice value
thereof if a defect in materials or workmanship arises under conditions
of normal and proper use and maintenance (fair wear and tear excepted).
We will have no responsibility for other loss or damage, including (without
limitation) loss of profit or production, except as required by law.
c) Unless we have arranged or agreed to do so, you will accept full responsibility
for installing, examining and testing the goods or Customer’s Equipment
on which we have worked as soon as it is delivered and we shall not be
responsible for any damage, cost or loss incurred by you due to your failure
to properly install or delay in testing the goods or Customer’s
Equipment or in notifying us of any defect.
d) In the case of equipment or parts not of our own manufacture, our responsibility
shall be limited to passing on to you the benefit of any guarantee or
warranty given to us by the manufacturer of such equipment or part.
e) In the absence of any special arrangements to the contrary, it is your
responsibility to ensure that the Supplies ordered are sufficient and
suitable for your purposes.
f) You accept that any other warranties and conditions implied by common
law or statute are excluded to the extent permitted by law.
8. DELIVERY
a) Although we will endeavour to provide the Supplies within the time
specified, no liability can be accepted for delays in delivery for whatsoever
reason unless specifically agreed in writing.
b) A charge will be made for additional tests or trial runs carried out
at your request. Test certificates
will be provided if required.
c) Unless otherwise agreed, Supplies are provided ‘ex works’
without packaging and you are responsible for transportation. We will
at your request and expense arrange carriage and insure the goods or Customer’s
Equipment against normal transit risks. In the event of loss or damage
in transit our responsibility shall be limited to passing on the benefit
of insurance. We and the carriers must be notified of such damage or loss
within seven days of delivery. It is your responsibility to examine the
goods or Customer’s Equipment immediately on receipt.
d) Unless otherwise agreed, the loading or off-loading of goods or Customer’s
Equipment on collection or delivery shall be arranged by you and performed
at your sole expense and risk.
e) If goods or Customer’s Equipment are to be sent abroad, you will
be responsible for obtaining any import licence required for the country
to which such equipment is to be dispatched.
9. LIMITATION OF LIABILITY
a) We accept that we are liable for any death or personal injury resulting
from our negligence or the negligence of our employees or agents acting
in the course of their employment. In relation to defects in goods sold
to you by us, we may also be liable under the Consumer Protection Act
1987 or equivalent legislation, but only to the extent that such liability
cannot lawfully be excluded.
b) Apart from our contract to rectify any defects or errors in the Supply
and to replace or repair the Customer’s Equipment or goods where
there is loss or damage to goods in transit as set out above:
i) our maximum liability to you for direct loss or damage, either under
this contract or arising
from any act or omission, including negligence, will not exceed the total
amount paid by you
under this contract, or such higher sum as a court may specify as reasonable
up to a limit of
£100,000; and
ii) we will not be liable to you under any circumstances for any other
loss including loss of
contracts or loss of profits or loss of production or any indirect or
consequential losses.
c) We disclaim any responsibility for failure due to defects of material
you supply. Whilst proper care is taken with your material, no liability
whatsoever can be accepted in respect of material supplied to us, should
it be accidentally spoiled, other than we agree to re-work replacement
material supplied by you free-of-charge.
d) Whilst proper care is taken with Customer’s Equipment and free
issue parts, our liability in the event of accidental damage or loss thereto
whilst at our works or in transit in our vehicles is limited to £10,000.
We are not liable for any cause of loss or damage outside our reasonable
control.
e) The limitations and exclusions in this paragraph apply to any claim,
whether in contract, tort (including negligence), breach of any statutory
duty or implied term or any other claim.
f) The limitations and exclusions in these conditions reflect the value
of this contract to us and are considered to be reasonable. If you require
us to accept greater liability we may be prepared to do so subject to
contract of an additional charge to reflect the increased risk and cost
of insurance to us.
10. UNFORESEEN EVENTS
We will not be liable to you for any failure to perform our obligations
under this contract where that failure results from any cause outside
our reasonable control, including but not limited to natural occurrences,
disruption of power supplies, the actions of third parties or industrial
action, or from government advice against travel to site.
11. TERMINATION OF THIS CONTRACT
a) We may bring this contract to an end if you fail to comply with your
obligations under this contract, within seven days of having been notified
by us of the relevant failure. We may also bring this contract to an end
immediately if you are the subject of a petition for a bankruptcy order,
or you become insolvent or enter into any composition, scheme or arrangement
with your creditors. If you are a corporation or other legal person, we
may bring this contract to an end immediately if a receiver (including
an administrative receiver) is appointed over any of your assets or an
application is made to appoint an administrator for you. If you are in
partnership, we may bring this contract to an end immediately if the partnership
is dissolved. We may also terminate this contract if any proceedings relating
to your insolvency are commenced in any country.
b) If this contract ends for any reason, we will be entitled to remove
all of our equipment from your premises or from site. You will remain
liable to us for any sums which you have not paid, for all Supplies provided
up to the date of termination and for any other breaches of this contract.
12. DISPUTES
a) Any dispute which we cannot settle amicably relating to the nature
or quality of the Supply will be referred to an expert to be agreed or
(if we and you cannot agree the choice of expert within 14 days of an
expert being proposed by you or us) appointed at the request of you or
us by the President for the time being of the Institute of Electrical
Engineers.
b) The written report of the expert will as between you and us be conclusive
evidence of all matters of fact and all matters of opinion set out in
the report and the charges of the expert shall be borne and paid as the
expert may direct.
c) Any other dispute (except action to secure payment which we may at
our option pursue in the courts local to you) will be determined by reference
to the Courts of England and you irrevocably submit to the exclusive jurisdiction
of such courts.
13. GENERAL
a) You will not assign your rights under this contract without our express
written approval. We may sub-contract the provision of certain of the
Supplies at our discretion. No third party shall acquire any rights under
this contract except as specifically stated in these conditions.
b) Any express or implied waiver by us of any failure by you to perform
your obligations under this contract will not prevent the subsequent enforcement
of those obligations. Similarly, any waiver we give will not be taken
to be a waiver of any subsequent failure by you to perform that or any
other obligation.
c) This contract constitutes the entire agreement between us relating
to the Supply and overrides any prior correspondence or statements relating
to the Supply (including any statements or representations in any advertisements
or literature produced by us relating to the Supply).
d) If any provision of this contract is ruled to be invalid for any reason,
that invalidity will not affect the rest of this contract which will remain
valid and enforceable in all respects.
e) This contract is governed by English law.
July 2002
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