Terms and conditions
These Conditions shall apply in place of and prevail over any terms or conditions contained or referred to in the Buyer's order or in correspondence or elsewhere or implied by trade custom practice or course of dealing unless specifically agreed to in writing by a Director or other authorised representative of HCL Fluid Power Ltd and any purported provisions to the contrary are hereby excluded or extinguished. For the avoidance of doubt each accepted order for goods between HCL Fluid Power Ltd and the Buyer shall form a separate contract "Contract" incorporating these Conditions.
4. Terms Of Payment
4.1. All goods shall be invoiced and paid for in Pounds
Sterling unless otherwise agreed in writing by HCL Fluid Power Ltd. Payment
shall be made by such means as HCL Fluid Power Ltd may from time to time
4.2. Payment of invoices shall, unless otherwise agreed in writing, be made in full without any deduction or set-off (unless the Buyer has an undisputed liquidated claim against HCL Fluid Power Ltd in an amount equal to the deduction) within 30 days of the date of the invoice.
4.3. Any extension of credit allowed to the Buyer may be changed or withdrawn at any time.
4.4. Interest shall be payable on overdue accounts at the rate of 10% above the current BoE base rate from the due date for payment thereof until receipt by HCL Fluid Power Ltd of the full amount whether or not after CCJ.
5.1. In any case where goods are sold ex-works or on
the basis of any other international trade term the meaning of such term
contained in Incoterms as revised from time to time
shall apply except where inconsistent with any of the provisions contained in
5.2. Delivery dates mentioned in any quotation or elsewhere are approximate only and may not be made of the essence by notice. Such dates are not of any contractual effect and HCL Fluid Power Ltd shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates.
5.3. Delivery shall be at the premises of HCL Fluid Power Ltd notified to the Buyer unless otherwise stipulated or agreed by HCL Fluid Power Ltd. Unless the Buyer instructs otherwise HCL Fluid Power Ltd will arrange carriage and insurance to the Buyer's premises at the Buyer's risk and the Buyer shall reimburse to HCL Fluid Power Ltd all sums expended by it in this connection upon payment by the Buyer for the goods in question.
5.4. If the Buyer refuses or fails to take delivery of goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery or shipment of the goods HCL Fluid Power Ltd shall be entitled to store the goods in such manner as it deems fit at the cost of the Buyer, to dispose of the goods as HCL Fluid Power Ltd may determine, and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure, or to terminate the contract with immediate effect.
5.5. Unless otherwise expressly agreed HCL Fluid Power Ltd may effect delivery in one or more instalments. Where delivery is effected by instalment each instalment shall be treated as a separate contract. In the event of payment not being made in accordance with the terms herein HCL Fluid Power Ltd may suspend delivery of all or any of the instalments.
Notwithstanding Condition 5 and Condition 7 risk shall pass on delivery to the Buyer, its agent or representative (including third party carrier) at the premises of HCL Fluid Power Ltd.
7.1. Notwithstanding delivery and the passing of risk,
property in all or any goods supplied by HCL Fluid Power Ltd shall remain in
HCL Fluid Power Ltd until HCL Fluid Power Ltd receives payment in full by or on
behalf of the Buyer of all sums in respect of the goods and all other sums
which are or which become due to HCL Fluid Power Ltd from the Buyer. Property
in the goods shall pass to the Buyer at the time when such payment is received
from the Buyer by HCL Fluid Power Ltd (and not earlier).
7.2. Until property in the goods passes to the Buyer, the Buyer shall be the bailee of the goods for HCL Fluid Power Ltd and shall store the goods securely safely and separately from the Buyer's own goods or those of any other person and in a manner which makes them readily identifiable as the goods of HCL Fluid Power Ltd. The Buyer shall ensure that the goods can be identified by a reference to corresponding invoice numbers. HCL Fluid Power Ltd's consent to the Buyer's possession of the goods and any right the Buyer shall have to possession of the goods shall cease if any sum in respect of the goods is not paid to HCL Fluid Power Ltd by or on behalf of the Buyer on or before the date when it is due.
7.3. The Buyer grants to HCL Fluid Power Ltd its agents and employees an irrevocable licence to enter upon any premises where the goods are stored or where HCL Fluid Power Ltd reasonably believes them to be stored for the purpose of inspecting or recovering them.
7.4. Notwithstanding the provisions of this Condition 7 the Buyer may sell the goods, on its own behalf and dealing as principal, to third parties in the normal course of business.
7.5. HCL Fluid Power Ltd shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from HCL Fluid Power Ltd.
HCL Fluid Power Ltd shall supply the goods subject to
availability and shall be deemed to have fulfilled its contractual obligations
in respect of any delivery, even though the quantity may be less than the
quantity specified in the quotation. In such event at HCL Fluid Power Ltd's
8.1. the Buyer shall pay for the actual quantity delivered provided that, in the case of discrepancies between the quantity delivered and the quantity specified in the invoice, the Buyer notifies HCL Fluid Power Ltd of a claim within 10 days of receipt of the goods; or
8.2. HCL Fluid Power Ltd may make good any shortage or non-delivery.
9. Specifications And Information
9.1. Unless expressly agreed in writing by HCL Fluid
Power Ltd all descriptions, samples, drawings, designs, specifications and
particulars or materials, colours, weights and dimensions submitted by HCL
Fluid Power Ltd are approximate, and HCL Fluid Power Ltd shall have no
liability in respect of any deviation therefrom.
9.2. All drawings, designs, specifications and information submitted by HCL Fluid Power Ltd are confidential and shall not be disclosed to any third party without HCL Fluid Power Ltd's written consent. All such drawings, designs, specifications and information and any copies made therefrom shall be returned to HCL Fluid Power Ltd upon request.
10. Limitation Of Liability
10.1. The following provisions set out the entire
liability of HCL Fluid Power Ltd (including any liability for the acts or
omissions of its employees, agents and sub-contractors) to the Buyer in respect
10.1.1. any breach of these terms and conditions; and
10.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the
10.3. Nothing in these terms and conditions excludes or limits the liability of HCL Fluid Power Ltd for death or personal injury caused by HCL Fluid Power Ltd's negligence or fraudulent misrepresentation.
10.4. Subject to conditions 10.2 and 10.3:
10.4.1. HCL Fluid Power Ltd's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the price paid by the Buyer for the item or items which have given rise to the liability and the price of any parts supplied by HCL Fluid Power Ltd which have been rendered defective as a result of the failure of the item giving rise to the liability. Alternatively, HCL Fluid Power Ltd at its option may replace or provide replacement parts for any goods found to be damaged or defective or rendered defective as stated above or give credit for the Contract price of such goods to the Buyer provided they have been returned to HCL Fluid Power Ltd; and
10.4.2. HCL Fluid Power Ltd shall not be liable to the Buyer by reason of any representation or any implied warranty, condition or other term or any duty at law or under the express terms of this Contract for any indirect or consequential loss or damage (whether for loss of business or otherwise), loss of profit, costs, expenses or other claims for consequential compensation whatsoever (whether or not caused by the negligence of HCL Fluid Power Ltd, its employees, agents or sub-contractors) which arise out of or in connection with a Contract.
10.4.3. HCL Fluid Power Ltd shall not be liable to the Buyer for defects in or damage to the goods caused by fair wear and tear, abnormal conditions of storage, fitting, installation, or use or any act, neglect or default of the Buyer or of any third party (including but not limited to use in circumstances and situations for which the goods are not suited) and
10.5. The Buyer shall indemnify HCL Fluid Power Ltd against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with a Contract or goods supplied under a Contract brought or threatened to be brought against HCL Fluid Power Ltd by any third party except to the extent HCL Fluid Power Ltd is liable to the Buyer in accordance with these terms and conditions.
10.6. In respect of warranties:-
10.6.1. HCL Fluid Power Ltd will use its reasonable endeavours to obtain for the Buyer the benefit of any undertakings warranties or indemnities which may be available from manufacturers of the goods.
10.6.2. Subject to Condition 10.3.1 and to the extent permissible in law, all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the goods are hereby excluded and HCL Fluid Power Ltd shall be under no liability to the Buyer for any loss, damage or injury direct or indirect resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of HCL Fluid Power Ltd its employees or agents.
10.7. HCL Fluid Power Ltd's prices are determined on the basis of the limits of liability set out in this Condition.
11.1. The Buyer shall meet the cost of any special
packaging requested by the Buyer.
11.2. HCL Fluid Power Ltd shall be entitled to invoice the Buyer for the cost of all pallets and other returnable packaging materials unless the same are returned to HCL Fluid Power Ltd in good condition or replaced carriage paid within 60 days of the date of delivery.
12. Licence And Costs
If any licence or consent of any Government or other authority shall be required for the acquisition, import, carriage or use of the goods by the Buyer, the Buyer shall obtain such licence or consent at its own expense and if necessary produce evidence of the licence or consent to HCL Fluid Power Ltd on demand. Failure so to do shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by HCL Fluid Power Ltd resulting from such failure shall be for the Buyer's account.
13. Force Majeure
13.1. HCL Fluid Power Ltd shall not be liable to the
Buyer for any loss or damage which may be suffered by the Buyer as a direct or
indirect result of the supply of goods by HCL Fluid Power Ltd being prevented,
hindered, delayed or rendered uneconomic by reason of circumstances or events
beyond HCL Fluid Power Ltd's reasonable control including but not limited to
Act of God, war, riot, strike, lock-out, trade dispute or labour disturbance,
accident, breakdown of plant or machinery, fire, flood, storm, difficulty or
increased expense in obtaining workmen, goods, materials or of raw materials therefor by HCL Fluid Power Ltd's normal source of supply
or the manufacture of the goods, by HCL Fluid Power Ltd's normal means of
delivery of goods or by HCL Fluid Power Ltd's normal route or means of
13.2. If due to such circumstances or events HCL Fluid Power Ltd has insufficient stocks to meet all of its commitments HCL Fluid Power Ltd may at its sole discretion apportion available stocks between its customers and the Buyer shall accept delivery thereof notwithstanding the terms of Condition 8.
14. Choice Of Law
The formation, construction, performance, validity and all aspects of this Contract are governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.
These terms and conditions are intended for sales between HCL Fluid Power Ltd and another business and do not apply to sales made to consumers (as such term is defined in the Unfair Contract Terms Act 1977).