Term & Conditions

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Terms and Conditions

 

  1. Basis of Supply of Goods to Customers

(a) Goods are sold subject to these terms and conditions (“the Terms”) which apply to the exclusion of all other terms whether express, implied by law or otherwise (including any terms printed on the customer’s order forms, in correspondence or implied by trade, custom or course of dealing) unless expressly agreed to in writing by Integrated Hydraulic solutions UK ltd (“IHS UK ltd”). All references in the Terms to “written agreement” by IHS UK Ltd shall mean agreement in writing signed by a Director of IHS UK Ltd; no other employee or representative of IHS UK Ltd is authorised to agree to any variation or concession of these Terms, nor to make any representation regarding the Goods.

(b) No estimate, quotation or proposal issued by IHS UK Ltd is an offer which is capable of acceptance by the customer to form a contract and a quotation shall only be valid for a period of 20 business days from its date of issue any order for goods is deemed to be placed upon these terms and will constitute an offer which IHS UK Ltd may accept or reject. The customer is responsible for ensuring

that the terms of the order and any applicable specifications are complete and accurate. IHS UK Ltd may accept such offer in writing (by sending to the customer an order Acknowledgement or otherwise), including for example by starting to process the order. If IHS UK Ltd accepts the Customer’s order, there shall be a binding contract between IHS UK Ltd and the customer (“Contract”).

(c) The contract constitutes the entire agreement between the parties. The customer acknowledges that it has not relied on any statement, promise or representation made of given by or on behalf of IHS UK Ltd which is not set out in the contract.

 

  1. Prices

(a) Unless special arrangements have been made with a customer and confirmed in writing, the price payable for goods shall be IHS UK Ltd quoted price (less any discount offered to the customer in writing) at the time of despatch which, in the absence of written agreement to the contrary, shall be exclusive of VAT, packaging, insurance, to the point of delivery and carriage, which shall be invoiced to the customer. A minimum order value may be imposed.

(b) IHS UK Ltd reserve the right at any time (including prior to delivery following order) to withdraw, revise or vary (a) any discount offered to a customer or (b) the quoted price or payment terms, to take account of a customer’s circumstances or increases in costs including (without limitation) factors beyond IHS UK Ltd control, costs of materials, carriage, labour or overheads, the increase or imposition of any tax, duty or levy and any variation in exchange rates, any request by the customer to change the delivery date(s), quantified or types of goods ordered or any delay caused by any instructions of the customer or failure of the customer to give IHS UK Ltd adequate or accurate information or instructions.

(c) Payment of the Goods shall be in accordance with clause 8.

 

  1. Goods

(a) The Goods means the goods (or any part of them) set out in the order (“Goods”) and including or as modified by any specification for the Goods, including any related plans and drawings that is agreed by the customer and IHS UK Ltd (“Specification”).

(b) To the extent that the Goods are to be manufactured accordance with a Specification supplied by the Customer, the Customer shall indemnify IHS UK Ltd against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by IHS UK Ltd in connection with any claim made against HIS UK Ltd for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with IHS UK Ltd use of the Specification This clause 3(b) shall survive termination of the Contract.

(c) IHS UK Ltd reserves the right to amend the Specification if require by any applicable statutory or regulatory requirements.

 

  1. Delivery and Installation

(a) Unless otherwise agreed in writing by IHS UK Ltd, delivery shall take place on arrival of Goods at the Customer’s place of business or such other place as agreed between the Customer and IHS UK Ltd in writing, and prior to offloading which shall be the Customer’s responsibility.

(b) IHS UK Ltd will use reasonable efforts to deliver Goods on the date agreed with a Customer or otherwise notified to the Customer in writing by IHS UK Ltd; delivery dates are intended to be estimates only and time for delivery is not of the essence. If no date is notified to a Customer; delivery will be within a reasonable time.

(c) IHS UK Ltd shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s Failure to provide IHS UK Ltd with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

(d) IHS UK Ltd will not be responsible for any direct or indirect loss or costs or damages, charges or expenses caused by any delay in delivering Goods nor will any such delay entitle the Customer to terminate or rescind, unless such delay exceeds 90 days. In the case of delivery of the Goods by instalment as a repudiation of the whole Contract.

(e) The Customer will take delivery of Goods on the delivery date agreed or notified. If for any reason the customer will not accept delivery of Goods on time, risk in the Goods will pass to the Customer, the Goods will be deemed to have been delivered, and IHS UK Ltd may store the Goods at the cost of the customer until delivery. Delivery subsequent to such a delay will be at the sole cost and risk of the Customer and shall be the Customer’s responsibility to organise. Goods not collected within 60 days of the due date may be disposed of.

(f) If IHS UK Ltd fails to deliver the Goods, its liability shall be limited to, at IHS UK Ltd discretion:- if the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods; or

  1. IHS UK Ltd issuing a credit note at the pro rata rate against any invoice raised for the

Goods; or

iii. IHS UK Ltd replacing the Goods within a reasonable time period.

(g) The Customer must notify IHS UK Ltd that Goods have not been delivered as scheduled no later than 7 days following the expected arrival date of the Goods at the location indicated by the Customer in its order or otherwise agreed with the Customer. If the Customer fails to accept delivery of the Goods within three business days of IHS UK Ltd notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or IHS UK Ltd failure to comply with its obligations under the Contract:

  1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third business day after the day on which IHS UK Ltd notified the Customer that the Goods were ready; and
  2. IHS UK Ltd shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

(h) If 10 business days after the day on which IHS UK Ltd notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, IHS UK Ltd may resell or otherwise dispose of part or all of the Goods.

(i) IHS UK Ltd may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

(j) Where it has been agreed between the parties that IHS UK Ltd will install the Goods at the Customer’s premises, the Customer shall be responsible for (a) advising IHS UK Ltd of any factors or circumstances which may affect the installation of the Goods including the location of where the installation is to take place, (b) providing all the necessary resources for the Goods to operate and for installation to take place at the location requested by the Customer, including an appropriate power or water supply and assistance by the Customer’s staff and (c) securing the health and safety at work of all IHS UK Ltd staff or sub-Contractors installing Goods on the Customer’s premises in accordance with all applicable laws and regulations, including health and safety at work legislation. Liability shall be limited in accordance with clause 6.

 

  1. Risk and Title to Goods

(a) Save as provided in 3 (e) above, risk passes to the Customer on completion of delivery.

(b) Title to the Goods shall not pass to the Customer until IHS UK Ltd has received in full (in cash or cleared funds) all sums due in respect of the Goods and all other sums which are or will become due to IHS UK Ltd from the Customer on any account.

(c) Until title has passed, the Customer must (i) hold all Goods on a fiduciary basis as IHS UK Ltd bailee, and (ii) must store the Goods safely and securely, maintaining them in a satisfactory condition, and at it’s own cost, separately from all other goods of the Customer in such a way as they remain readily identifiable as IHS UK Ltd property, and not remove, destroy, deface, or obscure any identifying mark or packaging on or relating to the Goods, (iii) insure the Goods to their full replacement value against all risks, and produce a copy of the certificate to IHS UK Ltd on request, (iv) notify IHS UK Ltd immediately if it becomes subject to any of the events listed in clause 7(b) and (v) give IHS UK Ltd such information relating to the Goods as IHS UK Ltd may require from time to time. (d) The Customer’s right to possession of the Goods prior to title passing shall terminate immediately if the Customer becomes subject to any of the events listed in clause 7(b) or the Customer breaches the terms of its Contract or any Contract with IHS UK Ltd (e) If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clauses 4(d) and 7(b), or IHS UK Ltd reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy IHS UK Ltd may have, IHS UK Ltd may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, IHS UK Ltd may enter the premises of the Customer or of any third party where the Goods are stored in order to recover them.

 

  1. Warranty

(a) Subject to Clauses 5(c) and (d) below, IHS UK Ltd warrants that Goods shall be of satisfactory quality and workmanship and shall conform in all material respects to any Specification or description of the Goods provided to the Customer by IHS UK Ltd for a period of 12 months following delivery of the Goods.

(b) Subject to clause 5(c), if:-

  1. the customer gives notice in writing to IHS UK Ltd within a reasonable time of discovery

that some or all of the Goods do not comply with the warranty set out in 5(a) above; and

  1. IHS UK Ltd is given a reasonable opportunity of examining the Goods; and

iii. the Customer (if asked to do so by IHS UK Ltd) returns such Goods to IHS UK Ltd place of business at the Customer’s costs; and

  1. if the Goods, or any part of them, do not conform to the warranty in 5(a) above; IHS UK Ltd will, at its option, repair or replace the defective Goods or refund an appropriate part of the price.

(c) IHS UK Ltd shall not be responsible for any breach of warranty and shall have no liability where:

(i) Defects are due to Force Majeure Events failure by a Customer to correctly store, apply, install or transport the Goods according to good trade practice or IHS UK Ltd instructions, nor defects due to fair wear and tear or wilful damage or negligence by the Customer; or

(ii) Where a Customer has or has attempted to repair or alter Goods; or where Goods have not been maintained, installed or operated in accordance with good engineering practice and all reasonable instructions and guidance provided by IHS

UK Ltd (in its drawings, data sheets and manuals or otherwise) from time to time; or

(iii) the defect arises as a result of IHS UK Ltd following any drawing, design or Specification supplied by the Customer

(iv) Defects in the Goods are due to the failure or design of other equipment with which the Goods interact, or failure of electrical supply; or

(v) The Customer makes any further use of such Goods after giving notice in accordance with clause 5(b)(i); or

(vi) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

(d) Goods are selected by the Customer and the Customer shall be responsible for ensuring the accuracy of any order and appropriateness or suitability of any Goods selected. Customers are particularly reminded that any test data supplied by IHS UK Ltd is supplied for information and guidance purposes only, IHS UK Ltd makes no warranties in relation to such date and it must be verified independently.

(e) Save as provided above, all warranties, conditions and terms implied by statute or common law, including sections 13-15 of the Sale of Goods Act 1979) are excluded from any Contract between IHS UK Ltd and the Customer to the fullest extent permitted by law. In particular, and without prejudice to the foregoing. IHS UK Ltd makes no warranties and shall not be liable in respect of goods or components manufactured or supplied by third parties.

 

  1. Liability

(a) Nothing in these Conditions shall limit or exclude IHS UK Ltd liability for:

  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

ii fraud or fraudulent misrepresentation;

iii breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

iv defective products under the Consumer Protection Act 1987.

(b) Subject to clauses 5(e) and 7(a):

  1. IHS UK Ltd shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

ii IHS UK Ltd total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods under the Contract.

 

  1. Customer’s Insolvency or Incapacity

(a) If the Customer becomes subject to any of the events listed in clause 8(b), or IHS UK Ltd reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to IHS UK Ltd, IHS UK Ltd may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and IHS UK Ltd without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

(b) For the purposes of clause 8(a), the relevant events are:

  1. The customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the

foregoing applies;

  1. The customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

iii. (Being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

  1. (Being an individual) the Customer is the subject of a bankruptcy petition or order;
  2. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  3. (Being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

vii. (Being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

viii. A person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

  1. Any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8(b)i to clause 8(b)viii (inclusive);
  2. The Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
  3. The Customer’s financial position deteriorates to such an extent that in IHS UK Ltd opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

xii. (Being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

(c) Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

 

  1. Payment

(a) IHS UK Ltd may invoice the Customer for the Goods on or at any time after completion of the delivery.

(b) Subject to any special terms agreed in writing with a Customer, the Customer shall pay the invoice in full and in cleared funds, within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by IHS UK Ltd. Time of payment is of the essence.

(c) If the Customer fails to pay any sum due to IHS UK Ltd when due then, in addition to any other rights which IHS UK Ltd may have, IHS UK Ltd may (i) charge interest on overdue sums at the rate of 3% per annum above the base rate from time to time of HSBC Bank plc, Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount and/or (ii) delay, suspend or cancel any remaining part of the Contract (or any other Contract) with the Customer and/or (iii) vary or withdraw any discount or credit offered to the Customer.

(d) The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against IHS UK Ltd in order to justify withholding payment of any such amount in whole or in part. IHS UK Ltd may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by IHS UK Ltd to the Customer.

(e) IHS UK Ltd shall be entitled to sue on the price notwithstanding the fact that the title in the Goods has not passed.

 

  1. Intellectual Property

In this clause 9, Intellectual Property means:- all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

(a) In the absence of written agreement to the contrary, all rights, title to and interest in all Intellectual Property and materials (including all plans, diagrams, Specifications, design data, drawings and models) (“Materials”) which are developed, designed or generated by IHS UK Ltd in the performance of any contract with the Customer and the supply of the Goods, shall vest in and belong to IHS UK Ltd as legal and beneficial owner, exclusively

(b) All rights, title to and interest in all Intellectual Property and Materials which are developed, designed or generated by the Customer shall vest in and belong to the Customer.

(c) IHS UK Ltd and the Customer will each, as and when required to do so by the other party, and at that other party’s expense, execute or do or procure to be executed or done all instruments and things necessary for vesting such Intellectual Property rights and confirming all rights, title to and interest in the same as set out in Clauses 9a and 9b above. Each party shall indemnify the other

in full respect of all costs, claims, liabilities and expenses which that other party may incur in relation to any claim by a third party that the use of any such intellectual property or materials infringes the Intellectual Property or other property rights of that third party.

 

  1. Force Majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

 

  1. Assignment and subcontracting

(a) IHS UK Ltd may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of IHS UK Ltd.

 

  1. Notices.
  2. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail. In the case of e-mail, it shall only be validly delivered if sent to accounts@ihsukltd.com, in the case of notices or communications sent to IHS UK Ltd, or such other e-mail address as IHS UK Ltd may notify to the Customer from time to time.
  3. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.i; if sent by pre-paid first-class post or recorded delivery, at 9.30 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.

iii. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

 

  1. Severance.
  2. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other

provisions of the Contract shall not be affected.

  1. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

 

  1. Waiver.

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

 

  1. Third party rights.

A person who is not a party to the Contract shall not have any rights under or in connection with it.

 

  1. Variation

Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by IHS UK Ltd.

 

  1. Governing Law and Jurisdiction

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-Contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.