In these conditions:-
"the Company" means Linde Hydraulics Limited.
"the purchaser" means the Company, firm or individual who has bought or agreed to buy the Goods;
"the Quotation" means the quotation addressed to the purchaser by the Company;
the expression "export contract" means a contract for the sale of goods where the goods are consigned outside the United Kingdom;
"the goods" means any item of goods of whatsoever nature which is sold, or agreed to be sold, by the Company to the Purchaser.
The expression "liability whatsoever" shall include, without prejudice to the generality of the expression, liability in tort and in contract, including liability for consequential loss (including loss of revenue or profit or loss of use or goodwill) or damage of any kind howsoever caused or arising.
The expressions "ex-works", "FOB" and "FOB Airport" shall have the meanings given them by the ICC Incoterms from time to time save where such meanings are inconsistent with the terms hereof.
(a) The Quotation does not constitute an offer to sell and no contract exists unless and until there has been an acceptance by the company in writing of an order placed (orally or in writing) by the Purchaser.
(b) The acceptance of the Purchaser's order whether or not based on a Quotation from the Company shall, unless otherwise specifically agreed by the Company in writing, be deemed to be subject to the terms and conditions herein contained which shall apply to the exclusion of any other provisions contained in any other document issued by the Purchaser and, in particular, but without prejudice to the generality of the forgoing, contained in any order sent by the Purchaser.
(c) (i) Unless otherwise stated in writing all descriptions, specifications, drawings and particulars of weights and dimensions submitted by the Company or otherwise contained in the Company's catalogues, brochures, price list and other published matter are approximate only and none of these form part of any contract or give rise to any independent or collateral liability upon the part of the Company being intended merely to present a general idea of the Goods as described therein.
(ii) None of the above-mentioned documents where issued before or after the formation of a contract, shall be copied, reproduced or communicated to persons unconnected with the purchase of the Goods without the Company's consent in writing.
(d) Where packing cases, trays, drums, containers, and other like items are charged extra, credit will be given in full if these are returned to the Company carriage paid and in good condition within two months of delivery.
(e) Any deviations in the Goods delivered from the particulars of the Goods stated in the contract will not be a ground for rejecting the Goods and treating the contract as repudiated.
(f) No modification or alteration to the Goods is permitted.
(a) Unless otherwise stated the price of the Goods in respect of:-
(i) contracts for delivery within the United Kingdom is Ex Works including the cost of basic packing, but excluding freight, insurance, delivery charges, VAT and applicable taxes and duties the cost of which shall be determined as at the date of the Company's invoice and shall be payable by the purchaser; and
(ii) export contracts is FOB, or FOB Airport, at the port, or airport, as the case may be nominated by the Company and includes the cost of basic packaging.
(b) The cost of any special packaging shall be determined at the date of invoice and shall be payable by the Purchaser.
(c) The Purchaser shall not be entitled to make any deduction from the price of the Goods in respect of any set-off or counter-claim unless both the validity and the amount thereof have been expressly admitted by the Company in writing.
(a) The Purchaser shall, except where other payment arrangements are specifically agreed in writing, make full payment in £ sterling for the Goods not later than 30 days of the date of the invoice relating thereto or, if earlier, on the day which a receiver of the Purchasers undertaking is appointed or upon which any act is done or event occurs which is related to the insolvency of the Purchaser. If payment for the Goods is not made when due the Company may charge interest thereon until payment, after as well as before judgement, at the rate of 8% (eight percent), per annum, above the Bank of England Base Rate from time to time in force and interest shall be compounded at monthly intervals from the due date of payment for the Goods until payment. Time of payment shall be of the essence. Also the Company may charge compensation for every invoice that was not paid within the credit period
The amount of compensation is:-
Invoice Amount Compensation
Up to £999.99 £40 per invoice
£1000 - £9,999.99 £70 per invoice
Over £10,000.00 £100 per invoice
(b) Any failure to pay the price or any part thereof and other moneys payable by the Purchaser hereunder when due will also entitle the Company to refuse to make delivery of any further consignment of Goods under this contract or Goods under any other contract and without incurring any liability whatsoever to the Purchaser for any delay.
c) In addition to any lien to which the Company may otherwise be entitled, the Company shall, in the event of the Purchaser being insolvent or failing to pay the purchase price due under this or any other contract with the Company (including any contract treated as a separate contract by virtue of Condition 7 (f) here of), be entitled to a general lien on all goods of the Purchaser in the Company's possession for the unpaid price of the Goods sold and delivered to the Purchaser by the Company under this or any other contract.
5. Transfer of Property
(a) The property in the Goods shall, notwithstanding the delivery of the Goods to the Purchaser, remain in the Company until the Purchaser has made full payment for the Goods.
(b) If the Purchaser incorporates or mixes the Goods with other equipment or products (the "New Goods") in such a way that the Goods are not a readily identifiable and removable part of the New Goods, the Purchaser shall store such New Goods separately and shall notify the Company of their location and the property in the New Goods shall vest in the Company.
(c) So long as the property in the Goods or the New Goods remains in the Company, the Purchaser shall hold the Goods or the New Goods as the Company's fiduciary agent and bailee and shall keep the Goods or the New Goods free from any lien or from any charge or similar encumbrance.
(d) So long as the property in the Goods or the New Goods remains in the Company and full payment for the Goods or the New Goods shall not have been made, whether or not payment shall have become due, the Company shall (unless restricted from doing so by the Insolvency Act 1986 or some other rule of law) have the right to retake immediate possession of the Goods or the New Goods and, for that purpose, with or without notice to the Purchaser to enter any premises occupied by the Purchaser in which the Goods or the New Goods may be. Such retaking of possession shall not relieve the Purchaser from its obligation to purchase the Goods by paying the full price thereof and shall not prejudice any rights of the Company, including any rights it may have to accept a repudiation. Where reasonably appropriate, the Purchaser agrees to take all steps necessary to effect the entry of a minor interest under the Land Registration Act 1925 to protect the Company's right to enter premises as set out in this Condition 5(d).
(e) Provided that the Purchaser has not become insolvent or had a receiver of its undertaking or any part thereof appointed, the Purchaser may sell the Goods or the New Goods to a third party notwithstanding that the property therein remains with the Company, provided that the sale so made by the Purchaser in the ordinary course of its business, is at full market value and takes place before the Company has sought to retake possession of the Goods or the New Goods in accordance with Condition 5(d) above.
(f) Any re-sale of the Goods or the New Goods by the Purchaser before the Company has received full payment for the Goods or the New Goods shall be made by the Purchaser as fiduciary and the Purchaser shall pay such proportion of the proceeds of such re-sale or sale as represents the invoice price of the Goods into a separate account designated with the name of the Company. The Company shall be entitled to trace these proceeds of sale in accordance with the principles in Re Hallett's Estate (1880) 13 ChD 696.
(g) As a separate and independent stipulation Condition 5(f) above shall be read and construed as if the terms "proceeds of such re-sale or sale" included the right to claim for such proceeds from the sub-purchaser.
(h) Unless prevented by any rule of law from so doing, the Company may apply any payment received from the Purchaser in or towards the satisfaction of any sum due in respect of the Goods or the New Goods or any item of the Goods, whether or not the Purchaser required the payment to be applied in or towards the satisfaction of some other sums due to the Company.
(i) The Company may maintain an action for the price of the Goods sold, notwithstanding that the property within them may not have passed to the Purchaser.
(j) So long as the property in the Goods or the New Goods remains in the Company, the Purchaser shall notify the Company as soon as possible of any circumstances that might give rise to the taking of the Goods or the New Goods by another person or the actual or attempted taking thereof.
(k) Each of the conditions of this condition 5 shall be construed as a severable contract term not affected by any invalidity or unenforceability of any other contract term and shall survive the termination of the contract between the Company and the Purchaser.
6. Risk and Insurance
(a) The Goods shall be at the Purchaser's Risk from the occurrence, at the earliest point of time, of any of the following events:-
(i) the physical delivery of the Goods to the Purchaser at the Company's Works;
(ii) the physical delivery of the Goods to the Purchaser's carrier or to an independent carrier for the purpose of transmission to the Purchaser or to his nominee; or
(iii) the physical delivery of the Goods to the Purchaser's place of business by the Company.
(b) Notwithstanding that the risk in the Goods has passed to the Purchaser, the Company may effect insurance of the Goods in its own name and in their full value, or such value as the Company may decide, against all usual risks and the costs of such insurance shall be determined as at the date of and included in the invoice. All insurance moneys received shall be applied towards replacement or repair of the Goods.
(a) Unless otherwise stated in writing the date for delivery shall run from the date on which acceptance of the order for Goods is communicated to the Purchaser.
(b) Delivery and the Purchaser's acceptance of the Goods shall be deemed to have taken place at the earliest point in time at which any of the events specified in Condition 6 (a) above takes place. Signature of any delivery note by any agent, employee or representative of the Purchaser or by any independent carrier shall be proof of the delivery and the Purchaser's acceptance of the Goods.
(c) Without prejudice to any rights of the Company hereunder, if the Purchaser shall fail to give on or before the agreed date of delivery all instructions reasonably required by the Company or shall fail to provide all necessary documents, licences, consent and authorities (which the Purchaser is obliged under these terms and conditions or by law to obtain) for forwarding the Goods or shall otherwise cause, or request delay in delivery, the Purchaser shall pay to the Company a reasonable charge for the care and custody of the Goods until they are delivered.
(d) Unless otherwise stated in writing the Company shall be entitled to make partial deliveries by instalments and to determine the route and manner of delivery of the Goods and shall, for the purposes of Section 32(2) of the Sale of Goods Act 1979, be deemed to have the Purchaser's authority to make such contract with any carrier as to the Company may seem reasonable. If the route involves sea transit the Company shall not be obliged to give the Purchaser the notice specified in Section 32(3) of the Sale of Goods Act 1979.
(e) If the Company is prevented from making delivery of the Goods or any part thereof on the agreed date of delivery or from installing the Goods or any part thereof on the agreed date of installation by any cause whatsoever outside its control, it shall be under no liability whatsoever to the Purchaser and shall be entitled at its option either to cancel the contract or to extend the time or times for delivery or installation by a period of at least equivalent to that during which delivery or installation has been prevented.
(f) Where delivery of the Goods is made in instalments, each instalment shall be construed as constituting a separate agreement to which all the provisions of these conditions shall (with any necessary alterations) apply.
(g) Time shall not be of the essence for delivery.
(h) In the event of any delay in delivery or installation whether attributable to a cause outside the Company's control or not the Company shall be under no liability whatsoever to the Purchaser.
The Company guarantees the Goods supplied by it against only defective materials and defective workmanship for a period of twelve months from the date of delivery (see Condition 7(b) above) provided the Purchaser notifies the Company in writing of any alleged defect within ten working days of its discovery. Under this guarantee the Company will, on the Purchaser returning the Goods carriage paid to such place as the Company shall direct (and Section 36 of the Sale of Goods Act 1979 shall not apply), make good any such defect by repair or replacement if, in the opinion of the Company, the defect constitutes a breach of this guarantee. Any parts so repaired or replaced free of charge under the guarantee will be subject to a guarantee on the same terms as this guarantee for a period of three months from the date of repair or replacement or until the expiration of the six month period of this guarantee whichever is the longer. No claim will be met by the Company under this guarantee arising out of fair wear and tear if the Goods have been incorrectly fitted, misused, subjected to neglect or abnormal conditions or used with lubricant of an unsuitable specification or have been involved in any accident or if any attempt to repair, replace or modify them has been made without the prior approval of the Company or if they have been in any way dealt with contrary to any instructions issued by the Company. Should these Conditions apply to a consumer transaction this Guarantee shall not affect the statutory rights of the Purchaser. In Condition 9 below and in this Condition "consumer transaction" and "statutory rights" shall bear the meaning they have in the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended).
9. Exclusion of Liability
(a) The Purchaser is relying on its own skill and judgement in relation to the Goods supplied under this contract and the Company accepts no liability whatsoever for any knowledge it or its servants or agents make possess as to the purpose for which the Goods are supplied.
(b) Save as expressly provided in Condition 8 above and save for the Company's liability for death or personal injury to the Purchaser resulting from the Company's negligence under any contract which does not fall within the provision of Section 26 of Unfair Contract Terms Act 1977 the Company shall be under no liability whatsoever to the Purchaser for:
(i) any defect in, failure of, or unsuitability for any purpose of the Goods or any part thereof whether the same be due to any act, omission, negligence or wilful default of the Company or its servants or agents, or to faulty design, workmanship or materials or to any other cause whatsoever, and all conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistence with the provisions of this condition, are hereby expressly excluded.
(ii) any deviations in the Goods from the particulars of the Goods stated in the contract save that where the Company considers that any such deviations are material it will replace the Goods with goods that comply with the particulars stated in the contract.
(iii) any claim made against the Purchaser by any third party pursuant to any death, personal injury, damage or other loss caused by any alteration to or modification of the Goods by the Purchaser whether or not the Company are aware that such alteration or modification has been or will be made.
(c) All, if any, statements, recommendations and advice given by the Company or the Company's servants or agents to the Purchaser or its servants or agents as to any matter relating to the Goods are given without responsibility and shall not give rise to any liability whatsoever on the part of the Company and the Purchaser hereby represents and warrants to the Company that no representation has been made to it by or on behalf of the Company that has in any way induced the Purchaser to enter into the contract with the Company.
(d) Should these Conditions apply to a consumer transaction the Purchaser's statutory rights shall not be affected by this Condition 9.
The Purchaser shall keep the Company indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice of the foregoing, claims for death, personal injury, damage to property and consequential loss, (including loss of revenue or profit, or loss of use or good will) which may be made against the Company by any third party or which the Company may sustain, pay or incur in relation to any third party claim or demand arising out of or in connection with the manufacture, installation, sale or use of the Goods, or of other goods of which the goods are a component part, and is caused in whole or in part by any act or omission of the Purchaser.
11. Export Contracts
In the case of export contracts all import duties, charges and assessments shall be made by the Purchaser and the obtaining of any necessary export and import licences in respect of the Goods shall be the sole responsibility of the Purchaser and the Company shall be under no liability whatsoever to the Purchaser in respect of goods exported without the necessary export and import licences.
12. Industrial Property Rights
In the event of any claim being made or action being brought or threatened in respect of infringement of patents, copyright, design rights, trade marks and service marks, trade names, registered designs or any other industrial property rights in respect thereof and will notify the Company thereof forthwith and the Company shall be entitled to conduct all negotiations and take all necessary proceedings to dispute the same in its own name and in the name of the Purchaser and the conduct of all proceedings and negotiations shall be completely in the discretion of the Company. In such event the Purchaser will execute all such documents and do all such things and render all such assistance to the Company as the Company shall require and the Purchaser shall indemnify the Company against all costs, expenses, loss or damage incurred by the Company in respect of any claim being made or action brought if any such claim is made or action brought or threatened as a result of work done in relation to the Goods by the Company in accordance with the Purchaser's specification or by the use to which the Goods are put by the Purchaser.
The Company reserves the right to sub-contract the performance of the contract or any part thereof.
The Purchaser shall not assign or transfer or purport to assign or transfer any contract to which these Conditions apply or the benefit thereof to any other person whatsoever without the consent of the Company.
15. Proper Law
All contracts made between the Company and the Purchaser shall be governed by, and construed in all respects in accordance with English Law.