Terms & Conditions
Terms and Conditions for the Supply of Goods and Services
1. Basis of contract
1.1 Your order constitutes an offer by you to purchase certain goods and/or services (Goods and Services) or to rent equipment in accordance with these terms and conditions and (where applicable) the terms set out in the quotation issued by us (Quotation). For the purposes of these terms and conditions, any acceptance of our Quotation by you will be deemed to be an order.
1.2 Your order shall only be deemed to be accepted when we issue an acknowledgement of order (Order Acknowledgement), at which point and on which date a contract shall come into existence between us in accordance with the terms set out in the Quotation and these terms and conditions (Contract).
1.3 Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Goods contained in any catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
1.4 The Quotation and these terms and conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.5 Any quotation given by us shall not constitute an offer and we may withdraw a quotation at any time.
1.6 Save as set out at clause 11, you may not terminate the Contract without our prior written consent. You acknowledge that any such consent may be conditional on a payment to us by you (in an amount which we will confirm) to compensate us for any losses (including loss of profit) we may incur resulting from termination of the Contract.
1.7 All of these terms and conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2. Delivery and commissioning of Goods
2.1 We shall deliver the Goods to the location specified in the Quotation or otherwise agreed by us in writing. The date of delivery and of commissioning will be confirmed to you by us in writing.
2.2 Any dates quoted for delivery and commissioning of the Goods are approximate only, and late delivery will not entitle you to terminate the Contract. We shall not be liable for any delay in delivery of the Goods that is caused by an event beyond our reasonable control or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
2.3 If we fail to deliver the Goods, our liability shall be limited to refunding to you the price paid by you to us for such Goods. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an event beyond our reasonable control or your failure to provide us with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
2.4 If you fail to accept delivery of the Goods on the delivery date notified to you or we are unable to deliver the Goods on such date as a result of your default (Agreed Delivery Date) then:
(a) delivery of the Goods shall be deemed to have been completed at 5pm on the Agreed Delivery Date; and
(b) we shall store the Goods until actual delivery takes place, and we may charge you for all related costs and expenses (including storage, insurance and redelivery).
2.5 If 14 days after the Agreed Delivery Date you have not accepted delivery of the Goods, we may resell or otherwise dispose of part or all of the Goods and charge you for any shortfall below the price of the Goods, together with our reasonable storage and selling costs.
2.6 We 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 you to cancel any other instalment.
2.7 We shall arrange for the Goods to be commissioned as soon as reasonably practicable following successful delivery and installation. Following successful commissioning you shall confirm your acceptance of the Goods (using our acceptance procedures in place from time to time). If you unreasonably withhold your acceptance but we nevertheless reasonably demonstrate that the Goods have been successfully commissioned, then any amount of the price retained by you in accordance with any terms agreed by us shall be immediately due and payable.
2.8 Unless otherwise agreed in writing by us, we shall not be required to carry out tests on the Goods other than our standard tests in use from time to time. Any additional tests required by you shall be chargeable at rates to be confirmed by us. If you require us to carry out tests using specific components or materials then such components or materials must be determined by us (acting reasonably) to be appropriate and in satisfactory condition. We shall not be liable for any delays arising from your failure to comply with this clause.
3. Quality of Goods
3.1 We warrant that on delivery, and for the Warranty Period, the Goods shall:
(a) conform in all material respects with any specification agreed between us in writing;
(b) be fit for any purposes agreed by us in writing; and
(c) be free from material defects in design, material and workmanship.
For the purposes of this clause 3, the Warranty Period shall be such period as we notify to you in writing, or in the absence of such notification, the period of 12 months commencing from the date on which we deliver the Goods.
3.2 Subject to clause 3, we shall, at our option, repair or replace any defective Goods that are subject to the warranty at clause 3.1, or refund the price of the Goods in full if:
(a) you give notice in writing during the Warranty Period within 7 days of your discovery that some or all of the Goods do not comply with the warranty set out in clause 1;
(b) we are given a reasonable opportunity of examining such Goods; and
(c) (if requested by us) you return the Goods to our place of business at our cost (or at your cost where we determine that you have failed to comply with this clause 2 or where the exclusions at clause 3.3 apply).
3.3 We shall not be liable for the Goods' failure to comply with the warranty in clause 1 if:
(a) you make any further use of such Goods after giving a notice in accordance with clause 2;
(b) the defect arises because you failed to follow our oral or written instructions (or any applicable manufacturers’ instructions) as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of us following any drawing, design or specification supplied by you;
(d) the defect or any damage arises as a result of your use with the Goods of parts, components or items supplied or sourced by you (including wiring, hoses and connectors);
(e) the defect or any damage arises as a result of you failing to ensure the provision of adequate foundations and/or services;
(f) you alter or repair such Goods without our prior written consent;
(g) the Goods have been serviced or maintained by a person other than us or our subcontractors;
(h) the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions; or
(i) the Goods differ from the agreed specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
3.4 If we attend your site to inspect the Goods and determine that any defect in or damage to the Goods, or any failure to operate as expected, is caused by any of the matters referred to at clause 3 then you shall pay for the costs of our visit at our engineer call-out rates in force from time to time.
3.5 If we replace any Goods or parts then the original Goods or parts shall become our property and you shall deliver them back to us (or if you fail to do so we may collect them from your premises).
3.6 Except as provided in this clause 3, we shall have no liability to you whatsoever in respect of the Goods' failure to comply with the warranty set out in clause 1.
3.7 The warranty in clause 1 is personal to you and is not transferable.
3.8 This clause 3 shall apply to any repaired or replacement Goods supplied by us for the unexpired portion of the Warranty Period.
4. Title and risk
4.1 The risk in the Goods shall pass to you on completion of delivery (unless agreed otherwise by us in writing).
4.2 Title to the Goods shall not pass to you until we receive payment in full (in cleared funds) for the Goods (unless agreed otherwise by us in writing).
4.3 Until title to the Goods has passed to you, you shall:
(a) ensure they remain readily identifiable as our property;
(b) not remove, deface or obscure any identifying mark on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on our behalf from the date of delivery;
(d) notify us immediately if you become subject to any of the events listed in clause 1(b) to clause 11.1(d); and
(e) give us such information relating to the Goods as we may require from time to time.
4.4 Subject to clause 5, you may use the Goods in the ordinary course of your business (but not otherwise) before we receive payment for the Goods.
4.5 At any time before title to the Goods passes to you, we may:
(a) by notice in writing, terminate your right under clause 4 to use the Goods in the ordinary course of your business; and
(b) require you to deliver up all such Goods in your possession that have not been irrevocably incorporated into another product and if you fail to do so promptly, enter any of your premises or those of any third party where the Goods are stored in order to recover them.
5. Supply of Services
5.1 We shall supply the Services to you in accordance with our Quotation in all material respects.
5.2 We shall use our reasonable endeavours to meet any performance dates agreed in writing for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
5.3 We reserve the right to amend the specification of any Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
5.4 We warrant to you that the Services will be provided using reasonable care and skill. Your sole remedy for a breach of the warranty in this clause shall be the re-performance by us of the relevant Services (provided you notify us of any breach within 30 days of performance of the relevant Services).
5.5 You acknowledge that any preventative maintenance or other servicing carried out by us from time to time does not imply any warranty regarding the continued operation of the relevant equipment. Our sole obligations (and your sole rights) in respect of such maintenance or servicing are as set out at clause 4 above.
5.6 Where you enter into a Contract with us for preventative maintenance, the term of such Contract shall be as agreed between you and us in writing (or in the absence of such agreement, terminable at any time on 30 days’ written notice by either party). We shall (subject to your cooperation and the payment of our charges) use our reasonable endeavours to carry out such maintenance visits as are recommended by the relevant manufacturer or as otherwise required by law.
5.7 If you fail to allow us (or our subcontractors) access to your site to provide Services on the date agreed with you, or if you request cancellation of any such visit at short notice so that we are unable to redeploy the relevant personnel, we shall be entitled to reimbursement by you of all reasonable costs we incur as a result.
5.8 Where as part of the Services we carry out refurbishment of your existing equipment, then you shall benefit from the warranty provisions at clause 1 in respect of such refurbished equipment (but subject always to the terms and exclusions set out in clause 3).
6. Customer's obligations
6.1 You shall:
(a) ensure that any information (including schematics or specifications) you provide to us in relation to either the Goods or Services is complete and accurate;
(b) offer reasonable co-operation with us in all matters relating to the Services;
(c) provide us, our employees, agents, consultants and subcontractors, with access to your premises and other facilities as reasonably required by us to deliver our obligations under the Contract;
(d) provide us with such information as we may reasonably require in order to deliver our obligations under the Contract, and ensure that such information is complete and accurate in all material respects;
(e) comply with all applicable laws, including health and safety laws;
(f) (where we agree to install the Goods) ensure that there is clear space (and a clear access route) at your site in order for us or our subcontractors to install the relevant Goods on the installation date we notify to you. We will not carry out any machine moving or other site preparation services unless agreed in writing by us;
(g) ensure the proposed installation site has adequate foundations/plinths (including for silos and chillers) and services for the relevant Goods. We will supply details of the required foundations/plinths and services at your request;
(h) (unless our Quotation indicates we are connecting these services) ensure that pressured air and an electrical power supply are connected to the Goods as required. You must use a qualified electrician for all electrical connections;
(i) ensure that all pressurised air supplies are clean, dry and of adequate volume; and
(j) not power on the relevant Goods until our engineer is ready to carry out commissioning.
6.2 If the performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or your failure to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of our obligations until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays our performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 2; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default (including storage, insurance, delivery and any applicable labour costs).
7. Charges and payment
7.1 The price for the Goods and Services shall be the price set out in our Quotation. Unless stated otherwise, all prices are exclusive of delivery, installation and commissioning. If the Quotation indicates that delivery is included, then the agreed price applies only to the delivery location agreed by us in writing. Delivery to any other location may incur additional charges, which we shall be entitled to invoice to you separately.
7.2 Unless stated otherwise, our Quotation does not include:
(a) any necessary adaptor plates for mounting equipment on your machines, modifications of hopper lids or the supply of hopper lids;
(b) provision of single or three phase supplies and isolators;
(c) connection of our equipment to your electrical supplies, or the cabling and plugs required to do so;
(d) compressed air fittings and pipe, or the connection of our equipment to your compressed air supply;
(e) water fittings and pipe, or the connection of our equipment to your water supply or tooling;
(f) any necessary civil work, such as silo foundations or their design;
(g) installation charges; or
(h) unloading and positioning of any Goods.
7.3 We reserve the right to increase the price of the Goods and Services to reflect any increase in their cost to us that is due to:
(a) any factor beyond our reasonable control (including foreign exchange fluctuations, increases in taxes and duties, increases in labour costs and increased costs from our suppliers);
(b) material information regarding your site or any technical installation requirements coming to our attention which were not communicated to us at the time of your order;
(c) any request by you to change the delivery date(s), quantities or types of Goods ordered, or the specification of any Goods or Services or installation requirements (including changes to throughputs, required layout, installation location and existing site layout/access); or
(d) any delay caused by any of your instructions in respect of the Goods or Services or your failure to give us adequate or accurate information or instructions in respect of the Goods or Services.
7.4 We shall be entitled to invoice you in accordance with any staged payment plan we agree with you in writing (or in the absence of such agreed payment plan, at any time after receipt of your order for Goods and/or Services). If you fail to pay any invoice by its due date or if we have reasonable grounds to believe your financial position has deteriorated, we shall be entitled to withdraw or vary any payment plan agreed with you and to require payment of the full price (or such lesser amount as we agree) prior to supplying any further Goods or Services.
7.5 You shall pay each invoice submitted by us:
(a) within the timescales agreed by you and us in writing (or in the absence of such agreement, within 14 days of your receipt); and
(b) in full and in cleared funds to a bank account nominated in writing by us.
7.6 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
7.7 If you fail to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 11 (Termination), you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7 will accrue each day at 5% a year above the Bank of England's base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Rental of equipment
8.1 This clause 8 applies in respect of any equipment (Equipment) which we agree to rent to you from time to time.
8.2 The period of rental shall be as agreed in writing by you and us from time to time or, if no such period is agreed, then the rental shall continue until either you or we terminate the rental on 30 days’ written notice to the other (Rental Period). The Rental Period shall end immediately on termination of the Contract.
8.3 You must make all rental payments to us for the Equipment in accordance with any payment schedule agreed in writing by you and us from time to time. All such payments are exclusive of VAT (which shall be payable by you at the rate and in the manner from time to time prescribed by law).
8.4 The Equipment shall at all times remain our property, and you shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment during the Rental Period subject to these terms and conditions).
8.5 The risk of loss, theft, damage or destruction of the Equipment shall pass to you on delivery of the Equipment. The Equipment shall remain at your sole risk during the Rental Period and any further period during which the Equipment is in your possession, custody or control until such time as the Equipment is redelivered to us.
8.6 You must give immediate written notice to us in the event of any loss, accident or damage to the Equipment arising out of or in connection with your possession or use of the Equipment.
8.7 You shall during the Rental Period:
(a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided by us) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) maintain at your own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on delivery to you (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
(d) make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment unless the component (or components) is (or are) replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in us immediately on installation;
(e) keep us fully informed of all material matters relating to the Equipment;
(f) keep the Equipment at all times at the agreed site and shall not move or attempt to move any part of the Equipment to any other location without our prior written consent;
(g) permit us or our duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(h) maintain operating and maintenance records of the Equipment and make copies of such records readily available to us, together with such additional information as we may reasonably require;
(i) not, without our prior written consent, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j) not without our prior written consent, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and you shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify us against all losses, costs or expenses incurred as a result of such affixation or removal;
(k) not do or permit to be done any act or thing which will or may jeopardise our right, title or interest in the Equipment and, where the Equipment has become affixed to any land or building, you must take all necessary steps to ensure that we may enter such land or building and recover the Equipment both during the Rental Period and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of us of any rights such person may have or acquire in the Equipment and a right for us to enter onto such land or building to remove the Equipment;
(l) not suffer or permit the Equipment to be confiscated, seized or taken out of your possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, you shall notify us and you shall at your sole expense use your best endeavours to procure an immediate release of the Equipment and shall indemnify us on demand against all losses, costs, charges, damages and expenses reasonably incurred as a result of such confiscation;
(m) not use the Equipment for any unlawful purpose;
(n) ensure that at all times the Equipment remains identifiable as being our property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment; and
(o) deliver up the Equipment at the end of the Rental Period at such address as we require, or if necessary allow us or our representatives access to the premises where the Equipment is located for the purpose of removing the Equipment.
8.8 You acknowledge that we shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by you or your officers, employees, agents and contractors.
8.9 The provisions at clause 3 shall apply to the Equipment except that the Warranty Period shall be equal to the Rental Period and our sole obligation if the Equipment fails to comply with the warranty in clause 1 shall be to repair or replace the Equipment.
8.10 You warrant that you are a limited company (or other body corporate) or a partnership having not less than four non-corporate partners. You shall indemnify us in respect of all costs, losses or expenses we incur as a result of a breach of such warranty.
9. Confidentiality
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
9.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
10. Limitation of liability
10.1 We have obtained insurance cover in respect of our own legal liability for public liability, product liability and professional indemnity claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover we have been able to arrange and you are responsible for making your own arrangements for the insurance of any excess loss.
10.2 The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.4 Subject to clause 3, our total liability to you under the Contract shall not exceed the lower of £5,000,000 and the price payable by you for the applicable Goods and/or Services (or in the case of Equipment rental, the price payable during the shorter of the Rental Period and 12 months).
10.5 We shall have no liability to you whatsoever for any loss of profit, loss of sales or business, loss of anticipated savings, loss of or damage to goodwill or any form of indirect or consequential loss.
10.6 We shall have no liability to you whatsoever for any death, personal injury or damage to property to the extent that such liability arises from your modification or incorrect operation of any of the Goods.
10.7 We have given commitments as to compliance of the Goods and Services with relevant specifications in clause 3 and clause 5. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.8 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.9 This clause 10 shall survive termination of the Contract.
11. Termination
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without affecting any other right or remedy available to us, we may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between you and us if you fail to pay any amount due under the Contract on the due date for payment, you become subject to any of the events listed in clause 1(b) to clause 11.1(d), or we reasonably believe that you are about to become subject to any of them.
11.3 Without affecting any other right or remedy available to us, we may terminate the Contract if you fail to pay any amount due under the Contract on the due date for payment and such sum remains outstanding 14 days after your receipt of a notice from us requiring payment.
12. Consequences of termination
12.1 On termination of the Contract you shall return any Goods which have not been fully paid for, together with any Equipment or Trial Equipment (as defined in clauses 1 and 15.1). If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
12.2 Any deposits or other amounts paid by you to us prior to termination shall be non-refundable.
12.3 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of you or us that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.4 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
13. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14. Part exchange
14.1 This clause 14 applies where we agree in writing that a proportion of the price of the Goods may be discharged by you transferring to us by way of part exchange your existing used equipment (Part Exchange Equipment) in which you have an interest either as owner or as hirer and bailee on hire-purchase.
14.2 If you state that the Part Exchange Equipment is owned by you then it is a condition of the Contract that the Part Exchange Equipment is your absolute property, that you have full legal, equitable and possessory title to it and full liberty both at law and in equity to dispose of it to us, without charge or encumbrance and free from the subtraction of any proprietary or possessory interest, and that we will receive unencumbered and unqualified ownership of the Part Exchange Equipment on its delivery to us and we will enjoy quiet and uninterrupted possession of the Part Exchange Equipment thereafter.
14.3 If you state that the Part Exchange Equipment is subject to a hire-purchase agreement then it is a condition of the Contract that the Part Exchange Equipment is the subject of a hire-purchase agreement or other encumbrance capable of cash settlement by us, in which case the allowance for the Part Exchange Equipment (as confirmed by us in writing) shall be reduced by the amount required to be paid by us in settlement of the hire-purchase agreement, and you warrant, represent and undertake that following the discharge by us of the hire-purchase debt, we will get unencumbered and unqualified ownership of the Part Exchange Equipment on its delivery to us, and we will enjoy quiet and uninterrupted possession of the Part Exchange Equipment thereafter.
14.4 If we have examined the Part Exchange Equipment before confirmation and acceptance of your order, the condition in which the Part Exchange Equipment shall be delivered to us shall correspond in every material respect (fair wear and tear excepted) with the condition of the Part Exchange Equipment on the date of such examination.
14.5 We shall be under no obligation to accept any Part Exchange Equipment that:
(a) does not conform to any given specification for such equipment;
(b) is not capable of removal from your site except with equipment necessitating further expense on our part;
(c) has not had all fluids removed from it by you or on your behalf;
(d) has not been disconnected from the power source at your site; or
(e) is not accompanied by a full specification and user manual.
14.6 The Part Exchange Equipment shall be delivered or made available to us on or before the delivery to you of the Goods that are to be supplied by us to you under the Contract. Title in the Part Exchange Equipment shall pass to us absolutely once those Goods are delivered to you.
14.7 Without prejudice to clause 6, the Part Exchange Equipment shall be delivered to us within 14 days of notification to you that the Goods to be supplied by us under the Contract are awaiting delivery.
15. Trial periods
15.1 This clause 15 applies in respect of any equipment (Trial Equipment) which we allow you to borrow on a trial basis.
15.2 You shall be entitled to keep the Trial Equipment for such period as we agree in writing (Trial Period). At the commencement of the Trial Period we shall notify you of the monthly rental payment applicable at the expiry of the Trial Period.
15.3 The provisions of clause 8 shall apply to the Trial Equipment during the Trial Period except that you shall have no obligation to make any rental payments and we shall have no obligation to repair or replace any Trial Equipment.
15.4 You acknowledge and agree that at the expiry of the Trial Period, you must:
(a) immediately return the Trial Equipment to us (at your cost) in the same condition as it was supplied to you (fair wear and tear excepted); or
(b) immediately purchase the Trial Equipment from us at the price agreed by us in writing (or in the absence of such agreement, our applicable list price then in force),
and if you fail to do so then you will be deemed to rent the Equipment from us from the expiry of the Trial Period in accordance with the terms of clause 8 and we shall be entitled to invoice you for all rental payments due during the applicable Rental Period.
16. General
16.1 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Contract. You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Contract without our prior written consent.
16.2 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case). Any notice delivered by hand shall be deemed delivered on signature of a delivery receipt. Any notice delivered by post shall be deemed delivered at 9.00 am on the second working day after posting or at the time recorded by the delivery service.
16.3 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 3 shall not affect the validity and enforceability of the rest of the Contract.
16.4 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between you and us, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6 The Contract constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
16.7 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.8 Except as set out in these terms and conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by us.
16.9 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.
16.10 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
16.11 The following rules of interpretation apply in these terms and conditions:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.