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1.1 All orders accepted and all tenders made by Hy-power Ltd (hereinafter called "The Company"), are made and accepted upon the following terms and conditions.
1.2 The "Customer" as referred to in these conditions is the person to whom the Goods are supplied under this contract.
1.3 The "Goods" are those items being supplied by the Company to the Customer under this contract.
2.1 The conditions provide the whole terms and conditions covering the contract. In the event that the Customer has any other conditions of contract which shall conflict with these conditions, these conditions shall apply to the exclusion of the Customer.
3.1 All prices quoted are accurate at the time of going to press, but are subject to change should the cost of goods to the company change.
3.2 Payment for the goods supplied under this contract shall be made within 30 days of the date of invoice.
3.3 If payment in whole or in part is not made within the said period of 30 days, interest on the amount unpaid shall accrue and be payable at the rate of 2% above the base rate from time to time and the time being of the Bank of Scotland until payment in full has been made.
3.4 Prices are exclusive of VAT or any similar sales tax and costs of transportation, duty, packaging and insurance.
4.0 RETENTION OF TITLE
4.1 Notwithstanding delivery, ownership in the Goods will remain with the Company and shall not pass to the Customer until the Company has received payment in full of all amounts due and owing from the Customer to the Company for the time being (including any interest accruing and owing to the Company) and from time to time in respect of all such Goods.
4.2 Until ownership in the Goods passes:
(a) the Company shall be entitled at any time to require the Customer to deliver the Goods to the Company and, where the Customer fails to do so, to enter any premises where the Goods are stored and repossess them:
(b) the Customer shall act as agent for the Company to resell the Goods and shall account to the Company for the proceeds of such resale:
(c) where Goods are incorporated into the become part of any of the Customer's products, upon sale of such products, the Customer shall account to the Company for the price of the Goods supplied by the Company; and
(d) the Customer shall ensure that the Goods are stored separately from any other property of the Customer or from any property belonging to a third party and held by the Customer and shall be clearly identifiable as the property of the Company.
5.1 Risk in the Goods shall pass on delivery thereof to the Customer or to the agent of the Customer or on collection from the Company's premises by the Customer or the agent of the Customer.
6.0 DAMAGE OR LOSS IN TRANSIT
6.1 Liability for damage and loss in transit will not be accepted except where the following conditions apply: Damage - delivery notes must be signed "unexamined" unless goods are inspected immediately. Notification to the Carriers and the Company must be given in writing within 7 days from date of delivery.
6.2 Loss - a) Passenger, Postal, Road Transport: The Company must receive notification of non-delivery within 7 days from date of invoice.
†b) Railway Goods: notification is required within 21 days from date of invoice; in the case of partial loss the Company must be advised immediately.
6.3 In the event that liability for damage or loss in transit is accepted, this will be limited to the replacement cost of the Goods or any individual component.
7.0 CLERICAL ERRORS
7.1 The Company shall not be bound by any clerical error or arithmetical errors occurring in any tender, invoice or statement of account issued by it.
8.0 DRAWINGS AND SPECIFICATIONS
8.1 All the information contained in any specification, drawing and catalogue (or which accompanies or forms part of any tender made by the Company) is subject to alteration at any time without prior notice and the Company will not be bound to comply exactly therewith.
8.2 The Company shall not be liable for any inaccuracies in any drawings, specifications or other information supplied to the user and the Company shall not be liable for any defects, accidents or happenings arising out of such faulty information.
9.0 INTELLECTUAL PROPERTY
9.1 The Customer acknowledges that any and all of the Intellectual Property Rights, patents, copyright, trade marks, designs, trade secrets, know-how or other Intellectual Property Right, whether or not registered or capable of registration used or embodied in or in connection with the Goods are and shall remain the sole property of the Company. The Customer agrees to treat as confidential and proprietary all such Intellectual Property Rights relating to the Company. The Customer shall indemnify the Company fully against all losses, liabilities, costs and expenses which the Company my incur as a result of work done in accordance with the Customerís specifications which involves or results in the infringement of any Intellectual Property Right of know-how of any third party.
10.1 Goods supplied by the Company, unless otherwise agreed will be free from defects in material and workmanship and will conform to specifications, drawings and/or other descriptions expressly made part of the contract for a period of one year from the date of delivery. Should any failure of the Goods to conform to this warranty appear within one year, upon notification thereof and substantiation that the Goods have been properly stored and maintained, and upon return of such Goods, the Company will, at its option repair or replace such Goods free of charge or issue credit in lieu of such repair or replacement.
10.2 This warranty is exclusive and any other warranty (particularly any warranty that the Goods are fit for any special purpose of the Customer), whether expressed or implied is excluded to the fullest extent permitted by the law.
11.0 LIMITATION OF LIABILITY
11.1 Notwithstanding anything else contained in this agreement, the Company shall not be liable for special, indirect or consequential damages such as, but not limited to, loss of profits or revenue, cost of purchased or replacement goods, or claims of customers to the Customer whether arising from negligence, breach of contract or howsoever.
11.2 The remedies of the Customer set forth herein are exclusive, and the liability of the Company in respect of any contract, or anything done in connection therewith such as the performance or breach thereof, or from the manufacturer, sale, delivery, resale, installation or use any Goods covered by or furnished under this Contract whether arising out of contract, negligence, delict or any warranty or otherwise, shall not, except as expressly provided herein, exceed the price of the Goods for which such liability is based.
11.3 The Customer agrees that it should have its own insurance in place to cover the special or consequential damages mentioned above and agrees that the Company's exclusion of liability is fair and reasonable.
11.4 Nothing contained in these Terms and Conditions shall limit liability in respect of death or personal injury caused by the Company's negligence.
12.0 RETURN OF GOODS
12.1 If no cancellation has been received by the Company and Goods have been dispatched to the Customer in accordance with the Customer's order, the Company will not accept the return of said Goods except in circumstances where the Customer makes a bona fide claim for replacement as set out in clause 10 above.
12.2 Returns by way of special agreement are subject to a restocking/handling charge of 30% of the original invoice value.
12.3 Refunds will be given at the discretion of the Company Management.
13.0 GOVERNING LAW
13.1 The contract shall be interpreted according to the law of Scotland which shall apply to the whole terms and provisions hereof and the parties shall submit to the non-exclusive jurisdiction of the Scottish Courts.
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