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FYFE WILSON & CO LIMITED - TERMS AND CONDITIONS OF BUSINESS
1. DEFINITIONS
In these Terms and Conditions (the "Conditions") the "Company" shall
mean Fyfe Wilson & Co Limited and the "Customer" shall mean the
person entering into the contract with the Company. These conditions
extend to the supply of services as well as equipment and for the
avoidance of doubt apply to contract works executed away from the
Company's premises whether on the Customer's own site or elsewhere.
Accordingly, "Goods" shall mean, where applicable, the provision of
work and/or materials and any product or service resulting from such
work and/or materials, whether or not complete. "Contract" shall
mean the contract for the Company's sale of, and the Customer's
purchase of, Goods. The "Offer" shall mean the quotation or offer
document prepared by the Company for submission to the Customer.
2. GENERAL
2.1 The Customer's acceptance of the Offer shall not be binding
until the Customer's purchase order (the "Order") has been accepted
by the Company (the "Acceptance").
2.2 These Conditions shall be deemed to be incorporated in all
Contracts except to the extent that they may be expressly varied by
the Company in writing and as set out in clause 2.3 below. No other
conditions or terms whatsoever, whether oral or written, regardless
of the date or dates upon which they were sent or exhibited by the
Customer shall affect or vary these Conditions and/or the terms or
conditions upon which they were made. For the avoidance of doubt the
Company shall not be deemed to accept such other conditions nor to
waive any of these Conditions by failing to object to provisions
contained in any Order or any communication from the Customer.
2.3 No representative, agent or salesman who is not a director or
designated manager of the Company has any authority to amend or
waive any of these Conditions or any other provisions of the
Contract.
3. LIMITS OF CONTRACT
3.1. All Offers are made subject to acceptance by the Customer
within 30 days of the date thereof (unless otherwise stated) and are
subject to the Goods being unsold and/or not withdrawn prior to
acceptance. All Goods are liable to be withdrawn without notice.
3.2 All Offers relate only to such Goods as are specified therein.
Drawings, dimensions and weights submitted by the Company must be
taken to be approximate and do not form part of the Contract. All
extras and accessories ordered but not specified in the Offer will
be charged for separately as will the costs of all alterations,
additions and other work undertaken.
3.3 The Customer's acceptance of the Offer must be on the basis that
sufficient information is provided by the Customer to enable the
Company to proceed with the Order forthwith. Otherwise the Company
shall be at liberty to amend the price indicated in the Offer (the
"Offer Price") to cover any increased costs in labour or materials
which may take place after submission of the Offer to the Customer.
3.4 Any samples submitted to the Customer and not returned to the
Company's works (the "Works") within one month from the date of
receipt shall be paid for by the Customer.
3.5 Where units have been stripped for inspection and work is not
proceeded with, the unit will not be reassembled. If the unit is a
generator or item of large plant, or no fault is found following
stripping, a charge will be made.
3.6 The Customer shall not assign or transfer his rights under any
Contract to any third party without prior consent in writing from
the Company.
3.7 The Company will attempt to execute all Orders at the Offer
Price (subject to clause 3.3 above), but reserves the right to raise
the Offer Price in the event of any increase in the Company's costs
that may take place between the date of Acceptance (the "Contract
Date") and the date the Goods are ready for delivery.
3.8 The Company's products are carefully inspected and submitted to
standard tests (as outlined in the Offer) at the Works before
despatch. If additional tests are required or if the Customer wishes
that any test to which the Goods are to be subjected take place in
the presence of the Customer or a representative of his, the Company
reserves the right to charge an additional fee. If requested by the
Customer the Company shall give the Customer seven days' notice of
when any tests are due to take place on the Goods. In the event of
failure of the Customer or the Customer's representative to attend
at the date and time specified by the Company, the tests shall
proceed in their absence entirely without prejudice to any
additional fee payable in respect of those tests.
4. DELIVERY
4.1 All prices quoted are ex-works unless otherwise stated in the
Offer.
4.2 Goods sold and collected by the Customer (or Customer's
sub-contractor) at the Works will be despatched according to the
Customer's instructions and shall be deemed to be at the Customer's
risk from the time of loading.
4.3 Goods sold delivered (rather than ex-works) will be despatched
by any means of transport at the Company's option unless otherwise
agreed in writing. All unloading and demurrage charges which may be
incurred will be charged to the Customer. Where the Company sells
Goods delivered to the Customer's premises or site the Customer must
ensure that adequate facilities exist for delivery by road and/or
rail and for unloading. Risk shall not pass until the unloading
process begins in respect of Goods delivered to the Customer's
premises or site.
4.4 The Customer shall be solely responsible for the proper
unloading of the Goods. If the Company assists the Customer to
remove the Goods from the point of delivery, neither the Company nor
any sub-contractor of the Company shall have any liability
whatsoever for loss or damage to the Goods or other property of the
Customer or any third party and the Customer shall indemnify the
Company with respect thereof.
4.5 Any packing or protection shall be at the discretion of the
Company. All such packing will be charged to the Customer unless it
is specifically included in the Offer.
4.6 The Company reserves the right to make delivery of the Goods by
instalments, unless otherwise expressly agreed in writing. The
period during which delivery by instalments may be made and the
quantity of the Goods delivered in each instalment shall be at the
Company's discretion. Where Goods are delivered in instalments, each
delivery shall constitute a separate Contract (in which the
Conditions apply) and failure by the Company to deliver any one or
more of the instalments or any claim by the Customer in respect of
any one or more instalments shall not entitle the Customer to treat
the Contract as repudiated.
5. TIME FOR DELIVERY
5.1 Delivery dates and times, where given, will be approximate.
Under no circumstances shall delivery times be or be capable of
being made of the essence of the contract.
5.2 The Company shall not be liable for any loss, damage, injury or
expense either direct or indirect which may be suffered by the
Customer by reason of late delivery of the Goods from whatsoever
cause such late delivery may arise.
5.3 If Goods are not collected within 14 days of notification that
the Goods are available for despatch the Company shall be at liberty
to arrange storage either at the Works or elsewhere at the
Customer's risk and charge for storage, insurance and demurrage at
the rate of 2% of the Offer Price plus any other payment owing to
the Company by the Customer (together called the "Outstanding
Payments") per month or part month from the date of notification
that the Goods are available for despatch until date of actual
despatch.
6. LOSS OR DAMAGE IN TRANSIT
6.1 In the event of loss or damage in transit from any cause
whatsoever (including causes which might be held to involve
fundamental breach of contract) the liability of the Company shall
be limited (at the Company's option) to replacing or repairing the
Goods or refunding the Offer Price. In no circumstances shall the
Company be liable for consequential loss.
6.2 The Company shall not be liable for any such damage as is
referred to in paragraph 6.1 above unless the Company and the
carriers are notified of such damage or loss within 7 days of
delivery. It is the responsibility of the Customer to examine the
Goods immediately on receipt.
7. GUARANTEE
7.1 If, except as provided in clauses 7.5, 7.6, 7.7 and 7.8, any
Goods are found by the Customer to be faulty within 6 months after
the date of supply or installation then the Company shall be
notified (the "Fault Complaint") in writing or verbally, and
promptly; at the latest within 7 days of the discovery thereof. The
Company shall be given the opportunity to fully inspect the Goods,
if necessary requiring them to be returned to the Works by the
Customer, subject to clause 7.3 below.
72. If the Fault Complaint is found by the Company to be genuine and
provided that the fault was present at the date of supply or
installation and has not been caused or aggravated by subsequent
misuse, neglect, damage or otherwise (and in particular by any
alteration or attempted repairs not authorised in writing by the
Company), the Company undertakes to rectify the fault at its own
cost, or if, at the Company's discretion, it deems it necessary,
replace the Goods or the faulty part.
7.3 If the Contract for the supply of the Goods included delivery of
the Goods to the Customer at the Customer's premises or other
premises, then in the event of a Fault Complaint made in accordance
with clause 7.1 above, the Company will attend the premises to which
delivery was made in order to collect the Goods. If the Goods the
subject of the Fault Complaint were collected by the Customer from
the Works then the Customer will be required to return the Goods to
the Works and collect them again when the Customer is notified that
they are ready for collection. This clause will apply irrespective
of repeated Fault Complaints.
7.4 Any Goods returned to the Company under the Fault Complaint
procedure above will be returned at the Customer's own risk and
cost.
7.5 Engine driven generating sets, electronic components and engine
repairs do not carry any guarantee or warranty.
7.6 No guarantee is given in respect of Goods not manufactured,
rebuilt, or reconditioned by the Company. In such cases the Customer
must satisfy himself that the Goods will meet his requirements and
rely on the manufacturer's guarantee where available.
7.7 No guarantee is given for Goods exported outside the mainland of
Great Britain.
7.8 No guarantee is given for Goods where the Company has not
received payment of all Outstanding Payments from the Customer.
7.9 The foregoing guarantees represent the whole liability of the
Company and all implied terms as to description, quality,
suitability or otherwise, and all liability for any
misrepresentation or negligence by the Company, their servants or
agents are expressly excluded, except in respect of death or
personal injury caused by the Company's negligence or wilful
default.
7.10 On any claim for failure to fulfil these guarantees, damages
shall not exceed the price charged by the Company for the faulty
Goods.
8. NO LIABILITY FOR CONSEQUENTIAL LOSS
8.1 The Company shall in no case be liable for loss or damage to any
premises, stocks or other property or for loss of profits or for any
legal liability of the Customer to a third party or any other form
of consequential loss, whether alleged to be due to breach of
contract, negligence or any other head of legal liability. Customers
should therefore check that their own property and liability
insurances cover risks from Goods supplied or installed by the
Company on the Customer's site or premises.
9. PLANT ON HIRE
9.1 Equipment supplied to the Customer on hire (the "Hire
Equipment") is subject to CPA terms or Standard Terms as detailed in
the hire agreement.
9.2 Hire Equipment shall be the Customer's responsibility and at the
Customer's risk from the time of collection from the Works by the
Customer or commencement of unloading at the Customer's premises or
other site if delivered by the Company.
9.3 The Customer is responsible for insuring the Hire Equipment,
underwritten by a reputable insurance company and the Company has
the right to inspect the insurance policy if they so wish. The
Customer undertakes to return the Hire Equipment in the condition in
which it was hired. The Customer shall keep the Hire Equipment in
good or proper repair.
9.4 All expressed or implied terms, conditions and warranties as to
the quality of the Hire Equipment are excluded and all liability for
any damage, loss or injury howsoever arising (including
consequential loss) is excluded save that if a defect occurs which
would have been covered by the Guarantee in clause 7 if the Hire
Equipment had instead been Goods, the Customer shall follow the
procedure set out in clause 7 as if the term "Hire Equipment" were
substituted for "Goods."
10. CANCELLATION AND VARIATION BY THE CUSTOMER
10.1 Orders accepted by the Company can not be varied or cancelled
without the Company's written consent. The Company reserves the
right to make charges to cover overheads, profit and direct costs
incurred by the Company to the date of cancellation or to cover any
amendments to the specification or otherwise of the Order as
requested or agreed by the Customer.
11. CANCELLATION BY THE COMPANY
11.1 If owing to hostilities (whether war has been declared or not),
Government Restrictions, strikes, riots or civil commotion,
difficulty or inability to obtain suitable raw materials,
devaluation, major movements in international exchange rates, force
majeure or causes of any other nature beyond the Company's
reasonable control the Company decides it to be unreasonable or
uneconomical to deliver the whole or any part of an Order, the
Company shall have the right on giving notice in writing to the
Customer to cancel the Order or any undelivered balance of the
Order.
11.2 In the event of cancellation under clause 11.1 the Customer
shall not be entitled to make any claim arising from such
cancellation other than a refund (without interest) of any advance
payment made or a reasonable proportion thereof in respect of the
cancellation of part of such Order as the case may be.
12. PAYMENT
12.1 Unless otherwise agreed in writing or credit account status
granted, payment terms will be net cash with order. Credit account
customers shall pay in full within thirty days of the date of the
invoice.
12.2 Notwithstanding despatch and the passing of risk in the Goods,
or any other provision of these Conditions, the property in the
Goods shall not pass to the Customer until the Company has received
in cash or cleared funds payment in full for the invoiced price of
the Goods together with any interest or other sums payable under the
relevant Contract in respect of the Goods.
12.3 Until such time as the property in the Goods passes to the
Customer, the Customer shall hold the Goods as the Company's
fiduciary agent and bailee and shall keep the Goods separate from
those of the Customer and third parties and properly stored,
protected, insured and identified as the Company's property. Until
that time the Customer shall be entitled to resell or use the Goods
in the ordinary course of its business, but shall account to the
Company for the proceeds of sale or otherwise of the Goods, whether
tangible or intangible, including insurance proceeds, and shall keep
all such proceeds separate from any monies or property of the
Customer and third parties and, in the case of tangible proceeds,
properly stored, protected and insured.
12.4 Until such time as the property in the Goods passes to the
Customer (and provided the Goods are still in existence and have not
been resold) the Company shall be entitled to require the Customer
to deliver up the Goods to the Company and, if the Customer fails to
do so, forthwith to enter upon any premises of the Customer or any
third party where the Goods are stored and repossess the Goods.
12.5 The Customer shall not be entitled to pledge or in any way
charge by way of security for any indebtedness any of the Goods
which remain the property of the Company, but if the Customer does
so all monies owing by the Customer to the Company shall (without
prejudice to any other right or remedy of the Company) forthwith
become due and payable.
12.6 The Company shall have a general lien on all goods and property
of the Customer in its possession until all Outstanding Payments are
made in full and shall be entitled on the expiration of 14 days
notice to dispose of such goods or property as the Company thinks
fit and shall be entitled to apply any proceeds towards such
Outstanding Payments.
12.7 No disputes as to quality of the Goods shall entitle the
Customer to delay any payment.
12.8 In the event of the Customer failing to comply with the
Company's terms of payment the Company (without prejudice to any
legal rights of action) reserves the right without notice to
discontinue forthwith the provision to the Customer of any further
Goods.
12.9 When delivery of the Goods is made by instalments the Company
may invoice the Customer for each instalment separately.
12.10 All prices exclude VAT. Where applicable Value Added Tax will
be added to invoices at the appropriate rate prevailing at the time
of raising the invoice.
12.11 The Company reserves the right at any time before proceeding
further with an Order to demand full or partial payment of monies
due and payable under the Contract and under any other contract
between the Company and the Customer.
12.12 If the Customer defaults in any payment the Company may, in
addition to exercising the right contained in 12.11 above suspend
work, delay or withhold delivery or cancel the Contract or suspend
work, delay or withhold delivery under, or cancel, any other
Contract between the Company and the Customer and to retain any
progress payments or payments on account already received under the
Contract or under any other Contract between the Company and the
Customer.
12.13 The Company reserves right to charge interest at an annual
rate of four per cent above the base rate from time to time of
National Westminster Bank Plc on all overdue monies.
12.14 All rights and remedies afforded to the Company in these
Conditions for non-payment shall be in addition and without
prejudice to all other rights and remedies available to the Company
under the Contract or at law.
13. RETURN
13.1 Goods may only be returned with the prior agreement in writing
of the Company. Any Goods returned without the prior agreement of
the Company will be returned to the Customer and a charge for
handling (not exceeding 10% of the current selling price of the
Goods) plus all carriage costs will be made.
14. TRADEMARKS, PATENTS AND OTHER INDUSTRIAL RIGHTS
14.1 If any claim is made against the Customer alleging that Goods
infringe any patent rights, registered designs, copyright or other
industrial property rights of another then:
(i) the Customer shall forthwith notify the Company with full
particulars; and
(ii) the Company or its suppliers or licensors (as the case may be)
shall be at liberty at their expense to conduct all negotiations
and/or litigation in respect thereof and (if necessary) in the name
of the Customer; and
(iii) except pursuant to a final award, the Customer shall not pay
or accept any such claim or compromise any proceedings without the
consent of the Company (which shall not be unreasonably withheld or
delayed).
14.2 The Customer shall indemnify the Company against all actions
costs (including the cost of defending legal proceedings) claims
proceedings and demands in respect of any infringement or alleged
infringement by the Company of patent rights registered design
copyright design rights or other industrial rights attributable to
the Company complying with any special instructions from or
requirements of the Customer relating to the Goods.
15. GOODS OFFERED WHICH ARE NOT THE COMPANYS OWN PROPERTY
15.1 Any information supplied by the Company concerning the location
and other matters in respect of goods and equipment offered for sale
by the Company but which are not the Company's property is given on
the understanding that the person making the enquiry will not make
direct approach to purchase them through the owner but will purchase
them through the Company.
15.2 The Customer agrees not to make any direct approach to the
owner and undertakes to reimburse the Company in respect of any loss
of commission or other loss which may result to the Company as a
breach of this clause.
16. INSOLVENCY OF THE CUSTOMER
16.1 This condition applies if:
(i) the Customer makes any voluntary arrangement with its creditors
or the Customer (being an individual or firm) becomes bankrupt or
(being a company) becomes subject to an administration order or goes
into liquidation (otherwise than for the purposes of an amalgamation
or reconstruction); or
(ii) an encumbrancer takes possession of, or a receiver is appointed
in respect of, any of the property or assets of the Customer; or
(iii) the Customer ceases, or threatens to cease, to carry on
business; or
(iv) the Company reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Customer and
notifies the Customer accordingly.
16.2 If clause 16.1 applies then, without prejudice to any other
right or remedy available to the Company, the Company shall be
entitled to suspend work, delay or withhold delivery under or cancel
the Contract without any liability to the Customer, and if the Goods
have been delivered but not paid for the price shall become
immediately due and payable notwithstanding any previous agreement
or arrangement to the contrary.
16.3 If clause 16.1 applies then the Company shall have a general
lien on all goods and property of the Customer in the Company's
possession until payment of all sums owing to the Company (including
in respect of work in progress) is made in full and the Company
shall be entitled to dispose of such goods or property as the
Company thinks fit and shall be entitled to apply any proceeds
towards such sums owing.
16.4 If clause 16.1 applies (and provided the Goods are still in
existence and have not been resold) the Company shall be entitled to
require the Customer to deliver up the Goods to the Company and, if
the Customer fails to do so, forthwith to enter upon any premises of
the Customer or any third party where the Goods are stored and
repossess the Goods.
17. SURVIVAL OF PROVISIONS
17.1 The expiration or determination of the Contract, howsoever
arising, shall be without prejudice to any provisions of the
Contract (including these Conditions) which are to have effect after
the date of expiration or determination.
18. INVALIDITY
18.1 If any term or provision of this Contract shall in whole or in
part be held to any extent to be illegal or unenforceable under any
enactment or rule of law that term or provision shall to that extent
be deemed not to form part of these Conditions and the
enforceability of the remainder of these Conditions shall not be
affected.
19. WAIVER
19.1 No waiver by the Company of any breach of obligation of the
Customer pursuant to the Contract shall constitute a waiver of any
other prior or subsequent breach of obligation.
20. NOTICES
20.1 All notices required to be given by either party to this
Contract to the other party in respect of this Contract shall not be
effective unless in writing and sent to the recipient at its last
known address.
20.2 Notice as in clause 20.1 above shall be deemed to have been
received by the recipient 48 hours after the same has been posted in
a first class prepaid ordinary letter or immediately where such
notice is sent by facsimile (upon receipt by the sender of the
appropriate facsimile confirmation report) or telex, or personal
delivery.
22. ENGLISH LAW
22.1 Unless otherwise agreed in writing the Contract shall in all
respects be construed and operate as an English contract and in
accordance with English Law.
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