HRS GROUP OF COMPANIES’ STANDARD TERMS AND CONDITIONS
FOR THE SUPPLY OF GOODS & SERVICES
1.1 “Buyer” means the person placing an order.
1.2 “Company” means any HRS Heat Exchangers
1.3 “Conditions” means these Conditions.
1.4 “Contract” means the contract formed by the Company’s acknowledgement of Buyer’s order.
1.5 “Goods” means the goods the subject of Buyer’s order.
1.6 “Repair and Refurbishment” means the provision of services and replacement of parts beyond economical repair to bring an item to serviceable condition.
1.7 “Services” means all services which are the subject of Buyer’s order or which are supplied to Buyer under these Conditions.
1.8 “Tender” means any tender or quotation submitted by the Company for the supply of Goods and/or Services.
2. CONTRACT AND SERVICES
2.1 No contract shall be made until Company has sent Buyer a written acknowledgement of order.
2.2 These Conditions, any Tender and Company’s written acknowledgement constitute the entire Contract. No representations, warranties, conditions or undertakings, (whether written or oral, express or implied) are binding on Company except contained herein. Any conditions of purchase of Buyer are rejected by Company.
2.3 Amendments must be in writing signed by a duly authorised representative of Company.
2.4 Any methods Company has specified for the carrying out of Services may be varied by Company.
2.5 Any time offered for completion of Services shall be measured from completion of inspection, where any, and otherwise from firm instructions from Buyer to proceed. Any time offered shall be an estimate except where liquidated damages for delay are agreed in the Contract. Any such damages shall be in full satisfaction of Company’s liability for delay. Time shall not be of the essence.
3.1 (a) The price of Goods shall be specified in the Tender.
(b) The price for Services shall be charged on the basis of time spent and expenses incurred and shall be stated in writing by Company or otherwise in accordance with the Company’s then prevailing rates. Where Company has stated a total price for Services the price includes labour only but does not include labour for modification or removal of equipment which is charged at then current rates.
(c) The price for services of Repair or Refurbishment where offered before inspection of goods is an estimate confirmed after inspection. Where after inspection an offer is rejected by Buyer, Buyer shall pay reasonable remuneration for the cost of the inspection.
3.2 Prices are exclusive of Value Added Tax or other Government charges.
3.3 The price shall include the cost of the packing and protection required under normal transport conditions. Prices are on the basis of Incoterms 1990 – “ex works”.
3.4 Without prejudice to any other remedies, Buyer will be liable to pay to Company a charge for storage, any necessary refurbishing and insurance where forwarding instructions are not received within 10 days of notification that Goods are ready for delivery. Buyer shall then pay for Goods as if delivered.
3.5 Costs of delivery of goods of Buyer for Repair and Refurbishment shall be paid by Buyer.
3.6 Buyer shall reimburse Company for any travelling, subsistence or accommodation expenses incurred by Company in providing Services. Overtime rates shall be charged when any Services are required outside Company’s normal business hours.
3.7 Parts shall be charged to Buyer at Company’s prevailing rates.
4.1 Terms of payment are on Company’s Tender and shall be made by Buyer against Company’s invoice 30 days from the invoice date. Payment should be made in cleared funds by such date in the currency invoiced. Company reserves the right to require deposits or advance payments.
4.2 No payment can be withheld where disputes arise nor shall Buyer be entitled to exercise any right of set off.
4.3 Should Buyer make default in any payment, threaten or be bankrupt or in liquidation or otherwise be unable to pay its debts, Company may cancel any undelivered portion of the Contract and stop Goods in transit, without prejudice to Company’s other rights or remedies.
4.4 Supplies shall be made subject to the approval by Company of Buyer’s credit and security can be required. Company reserves the right at any time to terminate any credit and defer or cancel further supplies.
4.5 Buyer shall be liable to pay Company interest at the rate of 5% pa above base rate of National Westminster Bank plc on late payments.
4.6 Where Company suspends performance of Services under clause 8.3, Buyer shall reimburse Company for the time of Company’s personnel and any expenses incurred. Company may levy cancellation charges unless alterations in service times are notified by Buyer no fewer than 2 weeks in advance.
4.7 Due to changing costs of material, labour and transport and extended delivery periods, Company reserves the right to invoice all Goods at the price ruling at the date of delivery.
4.8 Where supplies are across national boundaries, prices are based: (i) the official rate of exchange ruling across these boundaries at the date of ordering; and (ii) duties, surcharges and taxes where applicable across these boundaries at the date of ordering. The Company reserves the right to alter the invoice price where such rates and duties alter.
4.9 Where Buyer agrees an alteration after the order is accepted, Company may adjust the price. Where makers of components are not agreed in advance and on Company’s order acceptance and where detail designs such as electrical circuitry etc are not agreed in Company’s order acceptance, Company reserves the right to supply such detail designs and charge extra in the event of subsequent specification by Buyer of makers of components or detail designs etc.
4.10 Where a letter of credit is required it shall be irrevocable and shall be confirmed with a recognised UK bank and raised within 28 days from the date of Contract. It shall permit partial shipment and be valid at least 3 months beyond the acknowledged date of shipment and be payable against first presentation of shipping documents or, where Company cannot effect shipment due to any cause outside Company’s control, against certificate of manufacture. When Goods are to be shipped by Company, letters of credit shall be for amounts large enough to cover shipping and insurance costs.
4.11 Where Buyer purports to cancel its order before delivery, but after acceptance, Buyer shall pay a minimum cancellation charge of 20% of the price, plus the cost of any special parts manufactured or purchased specifically for the portion of the Contract which has been cancelled, without prejudice to Company’s other rights.
5. DELIVERY, RISK AND BUYER OBLIGATIONS
5.1 Company may make delivery by instalments. Each instalment is a separate contract. No failure or delay in the delivery of any instalment, or any defect in the content, shall entitle Buyer to treat the Contract as repudiated as regards remaining instalments.
5.2 Unless otherwise specified, delivery will be ex. our works.
5.3 No claim for short delivery of, or damage to, Goods may be made unless Company has received written notification within 5 working days of the receipt of Goods by Buyer. Claims for non-delivery must be made within 28 days of the notified date of despatch.
5.4 Where Company is responsible for transporting Goods or, for goods for Repair and Refurbishment, the goods are collected from Buyer’s premises, the risk of loss and damage shall pass to Buyer on delivery. From the time risk passes Buyer shall keep Goods fully insured against all risks, until final payment is made.
5.5 The Contract includes only such Goods, accessories, works and services as are specified in the Tender. Company reserves the right to exchange specified components and/or methods with others of equal or improved performances.
5.6 The weights, dimensions, capacities, performance ratings and other data included in catalogues, price lists and other advertising matter are approximate and shall not form part of the Contract. If specially prepared drawings are required, these will be subject to an extra charge.
5.7 Buyer shall grant Company access to its premises as reasonably required to perform Services.
5.8 Buyer shall obtain any necessary licences or approvals for performance of Services.
5.9 Buyer shall supply free of charge all items not specified as a responsibility of Company which are necessary or desirable for the Services, including, without limitation, all tools, utilities and connections and (if required) adequate telephone, telex, email and facsimile services and office space and shall otherwise co-operate with Company.
5.10 For services it is a condition of Company’s acceptance of Buyer’s offer, that Buyer shall not for a period of 6 months from completion of Services, employ or engage or attempt to employ or engage any employee of Company who is used by Company in connection with the provision of Services.
5.11 Buyer shall indemnify and keep indemnified Company from and against all claims, demands or expenses arising out of the death or injury of any person engaged by Company in providing Services, except where such death or injury is a direct result of the negligence or wilful misconduct of Company, the loss of or damage to any of
Company’s property, except where such loss or damage is solely as a direct result of the negligence or wilful misconduct of Company, where such death, injury, loss or damage occurs at Buyer’s premises or where Services are otherwise performed.
5.12 Deliveries are subject to requisite authorisation being obtained, including any necessary import and export licences.
5.13 Buyer shall be responsible for installation of Goods and their operation in accordance with standard factory practice and legislation applicable in the territory of installation. Provision by Company of a commissioning engineer acting in an advisory capacity during installation and/or start up of Goods does not imply that Company accepts responsibility for correct installation.
6.1 Goods remain the property of Company until the price together with any interest thereon and all other sums due from Buyer hereunder have been paid in full.
6.2 If Buyer shall dispose of Goods or make any insurance claim prior to Buyer acquiring title to them the proceeds of such sale or other disposition or any such insurance proceeds shall be the property of Company.
6.3 While Goods remain the property of Company if Buyer shall, or if Company has reasonable cause to believe that Buyer is likely to, fail to make any payment when due, be insolvent, in liquidation, administration, bankrupt or equivalent events or otherwise be unable to pay its debts when they fall due, Company shall have the following rights (in addition to its other rights and remedies): (i) to repossess Goods without prior notice and to enter upon premises for such repossession; (ii) to give written notice to Buyer not to part with possession of Goods until full payment is made; (iii) to pass title to Goods to Buyer by written notice to Buyer; and (iv) to cancel any undelivered Goods or incomplete portion of the Contract and stop any Goods in transit.
6.4 Any Goods repossessed may be resold by Company and Buyer shall remain liable to Company for the difference between the proceeds and all sums due to Company and costs incurred under this clause.
6.5 Nothing in this Clause shall give Buyer any right to return Goods. Company may sue Buyer for the price when due (without prejudice to its other rights).
7.1 Company warrants to Buyer that Goods will be free from defects in materials and workmanship for a period of 12 months from the date when Company notifies Buyer that Goods are ready for despatch. The warranty period for replacement parts shall not extend beyond 3 years from the date of commencement of the original warranty in relation to those Goods. For Services Company warrants that they will be supplied free from defects in workmanship and materials for a period of three months and for new replacement parts for a period of 12 months from the date when Company notifies Buyer that Services are complete. This warranty shall not apply unless Buyer notifies Company forthwith in writing of any alleged defects and returns Goods at its own cost and risk to the location specified by Company or, if Company so specifies, holds Goods for inspection by Company. If the alleged defect exists and has developed under proper use and arises solely from faulty materials or workmanship Company may at its option, either repair or replace the defective part or Services which shall be the sole and exclusive remedy.
7.2 The warranty set out in Clause 7.1 shall not apply to:
7.2.1 any Goods which have been repaired or altered otherwise than by Company or mixed with any other Goods or used to create composite products;
7.2.2 any Goods which have been subject to any accident or which have been improperly stored, maintained or used;
7.2.3 any defect in any Goods arising out of a design stipulated by Buyer;
7.2.4 any deficiency in Services caused by design parameters stipulated by persons other than Company, information supplied by Buyer or by persons under Buyer’s control or contract, or work performed by persons not under Company’s direct control.
7.3 Company will indemnify Buyer against liability for damage to person or property, arising during the performance of Services by Company, which results from the wilful negligence of Company’s servants, agents or contractors provided that Company’s liability under this Clause shall not exceed the Contract price. Liability for death or personal injury caused by negligence is not excluded or limited.
7.4 Save as expressly set out in these Conditions, Company shall not be liable for any loss or damage in relation to the Contract, however caused. Company’s liability to Buyer shall not exceed the price and Company shall not be liable for any indirect, special or consequential loss (including loss of profit).
7.5 Buyer shall indemnify Company against all claims, actions, costs, loss, damages or expenses or other matters suffered by Company arising out of or in connection with Goods or Services except to the extent of Company’s responsibility in Clauses 7.1 and 7.3 above.
7.6 Company will accept no liability for failure to attain any performance figures it quotes unless they have been specifically guaranteed in writing by Company and unless Company has specified in writing an agreed sum as liquidated damages. If the performance figures obtained in any test provided for in the Contract are outside the rejection limits specified, Buyer may reject Goods. Before Buyer becomes entitled to claim liquidated damages or to reject Goods, Company shall be given a reasonable time to rectify. If Buyer becomes entitled to reject Goods, Company will be liable to repay it only such sum, if any, which has been paid by Buyer to Company on account of the price thereof.
7.7 In the event Company supplies Goods different from those ordered Company’s liability shall be limited, without prejudice to Clauses 7.1 – 7.6 above, to the replacement of Goods or at Company’s option, credit can be given and not further.
8. FORCE MAJEURE
8.1 If either party is prevented or hindered from carrying out the Contract by circumstances beyond its reasonable control, including without limitation, any form of Government intervention, strikes and lockouts, (“Force Majeure”) the performance shall be suspended for such time as the circumstances last and the party affected shall not be liable for any delay. Where such delay lasts for an unreasonable time the party not affected by the circumstances may, by notice in writing, cancel any deliveries not made and no liability shall attach to either party.
8.2 Buyer shall pay Company such a sum as may be equitable in respect of work performed prior to cancellation.
8.3 Company’s obligation to perform Services shall be suspended if Buyer fails to provide adequate information equipment or facilities or if Buyer has otherwise failed to perform any of its obligations.
9.1 Buyer warrants that any design or instruction given by him shall not cause Company to infringe any patent, copyright, registered design, design right, database right or trade mark and Buyer will indemnify Company against all damages, costs and expenses to which Company may become liable as a result of any such infringement.
9.2 All proposals, reports, drawings, computer software, diagrams, databases, know-how, surveys, technical data and other documents or recorded materials produced by Company under the Contract and all intellectual property rights therein shall be the property of Company. Buyer shall keep such documents and material confidential and shall not use or disclose them without the prior written consent of Company.
9.3 Any drawings, photographs or other descriptive matter included with the Tender or in advertisements, catalogues, circulars, prospectuses, illustrated matter and price lists are intended to give only preliminary details and a general indication of the equipment offered. If Buyer wishes to rely on such data or any representation made by or on behalf of Company, but not expressly embodied in the Contract, Buyer must give Company notice in writing before acceptance of order. The price quoted includes provision of one print on paper of an outline drawing of Goods being supplied (where relevant), showing holding down bolt position and other connector positions and dimensions and one copy of the relevant instruction book. Instruction books and drawings shall be in the language of the country of source of manufacture. Linen prints or extra prints of drawings or extra copies of instruction books can be supplied on request at additional charge.
9.4 Buyer shall comply with all instructions on safe use of Goods and shall undertake in writing where required to take steps to ensure Goods are no risk to health. The said steps shall be specified by Buyer where Goods are to be supplied in accordance with Buyer’’ specifications.
9.5 Headings to the Clauses in these Conditions are for convenience only and shall not affect the construction thereof.
9.6 If any provision in these Conditions (or part thereof) shall be found to be unenforceable, the unenforceability shall not affect any other provision.
9.7 Company’s failure to insist on strict performance of any of Buyer’s obligations hereunder shall not be a waiver and shall not affect Company’s right to require strict performance of all Buyers’ obligations.
9.8 This Contract is personal to Buyer and may not be assigned by Buyer. Company may assign and/or subcontract its obligations under the Contract.
9.9 English law shall apply to this Contract and Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.