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Terms and conditions

DEFINITIONS

In these Conditions the “Company” means Rotec Hydraulics Ltd., the “goods” means any item of whatsoever nature which is to be sold by the Company; “Purchaser” means the person who buys or has agreed to buy the goods; the expression “liability whatsoever” shall include, without prejudice to the generality of the expression, liability in tort and in contract, including, liability for death, personal injury, damage to, or loss of, property and all direct and consequential loss of any kind howsoever caused or arising but excluding any liability for death or personal injury resulting from the company’s negligence within the meaning of that expression as defined in Section 1 of the Unfair Contract Terms Act 1977.

GENERAL

(a) These Conditions shall apply to every sale made or agreed to be made by the Company and no variation or abrogation of the same shall be effective (whether contained in any document emanating from the Purchaser or made orally by any person acting or purporting to act on behalf of the Purchaser or the company) unless it is evidenced in writing signed on behalf of the Company and such evidence contains a specific reference to these Conditions being varied or abrogated.

(b) The giving by the Purchaser of any delivery instructions for the goods or any part thereof or the acceptance by the Purchaser of delivery of the goods or any part thereof shall constitute unqualified acceptance by the Purchaser of these Conditions.

(c) All specification, colours, illustrations, drawings and diagrams in the Company’s catalogue, trade literature and other published matter are of a general informative nature and approximate only and none of these form part of any contract or give rise to any independent or collateral liability of whatsoever nature on the part of the Company.

(d) The placing of an order for goods following a quotation given by the Company shall not be binding on the Company unless and until accepted by the Company in writing.

(e) Subject and without prejudice to sub-clause (d) hereof the Company’s quotations are given on the basis that the terms quoted will remain open for the placing of orders for 21 days from the date thereof but the Company reserves the right to revise the price quoted without notice under Condition 3(d) if any such event as is therein mentioned occurs which would, if taken into account, result in an increase at the date of delivery of the goods in the price of the goods.

(f) In no circumstances shall a Purchaser cancel a contract to which these Conditions apply without the Company’s written agreement; if such agreement is given the Purchaser will indemnify the company against all liability whatsoever arising out of such cancellation.

(g) No contract to which these Conditions apply shall be a sale by sample unless the Company expressly agrees in writing.

PRICE

(a) All prices quoted exclude the cost of packing and carriage which will be charged at cost.

(b) Where it is discovered by the Company that any quotation or estimate given by it contains an accidental error or omission then, notwithstanding the quotation given, the company shall be entitled to invoice, and receive payment from, the Purchaser in accordance with the price at the date of despatch.

(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 claims.

(d) The Company shall be entitled to adjust the price for the goods before acceptance of the goods in the event of any increase howsoever arising in the cost to the Company of supplying the goods.

(e) The company shall be entitled to bring an action for the price whether or not the property in the goods has passed.

DELIVERY

(a)Any length of time or any dated named or accepted by the Company for delivery is not a condition or other term of the contract to which these Conditions apply and is an estimate only and the Company shall not be liable for the consequences of any delay. In particular, but without prejudice to the generality of the foregoing, the Company shall be under no liability whatsoever for any delay in delivery caused (directly or indirectly) by any cause whatsoever outside its reasonable control including (but without prejudice to the generality of the foregoing) act of god, war, riot, strike, lock out, trade dispute, fire, break down, mechanical failure, interruption of transport or Government action and in any such event the time for delivery may be extended by the company or the Company may cancel the contract to which these conditions apply without any liability whatsoever on its part. Time for delivery is, accordingly, not the essence of the contract to which these Conditions apply.

(b) Unless otherwise stated in writing delivery of the goods to the place specified by the Purchaser in the United Kingdom shall constitute delivery to the Purchaser and sub-sections (1) and (2) of Section 32 of the Sale of Goods Act 1979 shall not apply to any contract to which these Conditions apply. The company shall be entitled to determine the route and manner of delivery of the goods.

(c) If the Purchaser fails to give all necessary instructions and documents for the goods to be forwarded or the Purchaser shall otherwise cause or request delay, the Purchaser shall pay, as part of the price, all storage and other relevant costs.

(d) Unless otherwise stated in writing the Company shall be entitled to make partial deliveries of the goods by instalments and these Conditions shall apply to each partial delivery.

PAYMENT

(a)Unless otherwise specified in writing by the company payments by the Purchaser of the price shall be made within 30 days of the date of invoice.

(b) Time for payment of the price shall be of the essence of the contract to which these conditions apply and if the Purchaser shall fail to pay the price for the goods when due in accordance with the provision of this condition the Company shall be entitled to interest on the outstanding amount of the price at the rate of two per cent per month, calculated on the actual days elapsed until the price is paid in full and in addition, but without prejudice to such right, if the Purchaser shall fail to pay the price for the goods when due in accordance with the provisions of the Condition the Company may treat such contract by the Purchaser to purchase the goods as repudiated by the Purchaser.

TRANSFER OF PROPERTY

(a) The property in the goods shall remain in the Company until full payment under the contract to which these conditions apply has been made or title is properly vested in some other person by the operation of any status. Until the property passes, the Purchaser must keep the goods free from any charge, lien or other encumbrance.

(b) The Company may at any time and from time to time until the property in the goods has passed require them to be returned to it and if this requirement is not immediately complied with may retake possession of such goods and shall have the right and power to sell the goods without prejudice to such other rights as the Company may have (and may enter any premises of or occupied by the Purchaser for such purpose and sever the goods from anything they are attached to without being responsible for any damage caused). Such return or retaking of possessions shall be without prejudice to the obligation of the Purchaser to purchase goods.

(c) The Purchaser (acting on its own account and not as an agent of the Company) may agree to re-sell any goods in its passion in the ordinary course of trading notwithstanding that the property in the goods has not then passed to it, provided that Company has not required their return and provided none of the events mentioned in condition 10 has occurred.

RISK

(a) The goods are at the Purchaser’s risk from delivery of the goods to the Purchaser until any subsequent retaking of possession by the Company. Notwithstanding the foregoing the Company will ensure that the goods are packed so as to withstand all normal incidents of transit but will only replace or repair any goods which are lost or damaged in transit if notice is given to the Company and carrier (if any) within ten days of the date of invoice specifying the non-arrival of the goods or the damage alleged. The company reserves the right to inspect any goods which are alleged to have been so damaged and such goods shall be retained by the Purchaser until such inspection has taken place or the right to inspect is waived by the Company in writing.

(b) Whilst the goods are in the possession of the Purchaser and before the property in the goods has passed to the Purchaser, the Purchaser shall insure the goods, shall keep the goods in the same condition as that in which they were delivered and shall make good any damage or deterioration, claiming under any such insurance made pursuant to this paragraph if reasonably required by the Company.

GUARANTEE

(a) The Company guarantees goods supplied by it free from defects in material and workmanship for 12 months from the date of invoice. Provided notification is given of any alleged defect within 14 days of its discovery. Under this guarantee the Company will on the Purchaser returning the goods if so requested by the Company, 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 free of charge any such defect by repair or replacement of the goods. Any parts so repaired or replaced under this guarantee will be subject to the guarantee during the balance of the said original guarantee period only. No claim will be met by the Company under this guarantee if, in the opinion of the Company, the defect arises out of excessive wear and tear or the goods, have been incorrectly fitted, misused, subjected to neglect, carelessness or abnormal conditions or involved in any accident or any attempt at repair, replacement or modification has been made without the sanction of the Company or the goods have been in any way dealt with contrary to any instructions issued by the Company or the terms of payment set out in Condition 5 have not been complied with by the Purchaser.

(b) Where these Conditions apply to a consumer sale which is not an excepted sale within the meaning of those expressions as defined in the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended) this guarantee will be in addition to the statutory rights of the Purchaser within the meaning of that expression as defined in the Consumer Transaction (Restrictions on Statement) Order 1976 (“statutory rights”) and will in no way affect the statutory rights of the Purchaser.

EXCLUSION OF LIABILITY

(a) Save as expressly provided in Condition 8 above and save to the extend mentioned below in the case of a consumer sale, the Company shall be under no liability whatsoever for 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 and the Purchaser hereby waives, and all conditions, warranties or other terms, whether expressed or implied statutory or otherwise, inconsistent with the provision of the Condition are hereby expressly excluded. Where the Purchaser deals as consumer within the meaning of that expression as defined in Section 12 of the Unfair Contract Terms Act 1977 none of the statutory rights of the Purchaser are excluded by this Condition and the statutory rights of the Purchaser in the case of a consumer sale remain in full force and effect and are in no way affected by any of the provisions in this Condition 9.

(b) Deviations in quantity of goods delivered from those stated in the contract to which these Conditions apply shall not give rise to a right to reject on the part of the Purchaser and the Purchaser shall have no right to claim for damages for breach of contract but the Purchaser will only be obliged to take delivery of, and pay at the contract rate for, the quantity of the goods delivered.

BREACH AND PURCHASER’S INSOLVENCY

If the Purchaser shall default in or commit any breach of any of its obligations to the Company (whether or not such obligations are, or are expressed to be conditions or other terms) or if any distress or execution shall be levied upon the Purchaser or if the Purchaser shall enter into any negotiations for arrangement or composition with its creditors or commit any act of bankruptcy or if any petition in bankruptcy shall be presented against it or, if the Purchaser is a corporate body, any resolution is proposed or petition presented to wind up the Purchaser or if a receiver of the Purchaser’s assets or undertaking or any part thereof shall be appointed or if the Purchaser shall be deemed to be unable to pay its debts within the meaning of Section 223 of the Companies Act, 1948 the Company shall be entitled to determine forthwith any contract then subsisting without prejudice to any other claim or right the company might make or exercise.

HEALTH AND SAFETY AT WORK ETC. ACT 1974

(a) The Purchaser shall, if the Company so requires, sign a written undertaking, in such form as the Company shall require, agreeing to take such steps as are communicated in writing by the Company to Purchaser and such other necessary steps to ensure, so far as is reasonably practicable, that the goods will be safe and without risks to health when properly used.

(b) The Purchaser shall disseminate, in such manner and to such people as the Company shall deem necessary, all information given to the Purchaser by the Company about the use for which the goods are designed and have been tested and about any condition necessary to ensure that, when put to that use, the goods will be safe and without risks to health.

(c) The Purchaser shall keep the Company indemnified from and against all costs, claims, demands, expenses and all liability whatsoever which may be made against the company or which the Company may sustain, pay or incur out of or in connection with any breach by the Purchaser of Condition 11 (b).

NOTICES

Any notice to be given by the company shall be deemed to be given upon its being posted or sent by telex, cable or telegram to the Purchaser’s registered office or last known address or, in the case of an individual or firm, to its last know address.

ASSIGNMENT

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.