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GENERAL CONDITIONS OF SALE REPAIR & INSTALLATION OF DUNCAN ROGERS
(ENGINEERING) LIMITED
GENERAL:
1. Unless and so far as specifically agreed in writing to the
contrary, these conditions shall apply to any order
placed with Duncan Rogers (Engineering) Limited ("the company")by any
other party ("the Buyer" relating to goods or equipment manufactured or
supplied by any other manufacturer or supplier ("the Supplier"). Any conditions
of Purchase of the buyer shall not apply to the order including the repair
and installation thereof whether expressly repudiated by the Company or
not.
2. No orders submitted orally or by telegram, fax, cable or
telephone shall commit or be binding on the Company unless confirmed by
the Buyer in writing and accepted by the Company in writing. Oral instruction
and promises given by the Company's employees or agents are subject to
written confirmation by the Company.
3. Any data given by the Company are approximate. If
the Company shall use marks or numbers for designating the order or parts
order, no legal rights shall result therefrom.
4. Written quotations and estimates given by authorised
employees or representatives of the Company shall be binding on the Company
for a period of 30 days or such shorter period as shall be stated therein
and thereafter subject, to variation without notice.
REPAIR & INSTALLATION:
5. (a) In the case of orders for repairs the Company
is entitled to remedy also those faults which become evident during the
actual repair. The Company is entitled to supply services exchange parts,
partly or wholly in lieu of executing the repair. Parts replaced become
the property of the Company.
(b) The Buyer at its own risk shall place at the disposal of the Company's
Service Engineer such skilled and unskilled labour as the Company or its
Service Engineer my deem necessary and the Buyer will be held responsible
for any damage or loss occurring to Company's Service Engineer's property
whilst is on site. The normal working week consists of five working days
Monday to Thursday 8.00am to 4.30pm, Friday 8.00am to 3.30pm with half
hour break for lunch. The Company's Service Engineer are informed that
work outside normal hours must only be undertaken with the approval of
the Buyer.Travelling time and expenses are charged at rates appropriate
to the journeys undertaken, due allowances being made for journeys which
serve more than one job. In the case of dispute the Company reserves the
right to calculate these charges as if the journey were undertaken from
the Company's works. If due to circumstances beyond the company's control
the Service Engineer is unable to work a normal day the Company reserves
the right to charge the Buyer full eight hours for that day. If due to
sickness or accident the Service Engineer is unable to complete the workcovered
by a Buyer's order the travelling expenses of a substitute will be charged
to the Buyer. The Service Engineer is entitled to an out-allowance for
each full day spent away from the Company's base. If due to lack of suitable
accommodation,and his expenses exceed the out-allowance the Company shall
charge the Buyer the actual expenses incurred in Lieu of the out-allowance.
(c) An estimate of costs will be submitted to the Buyer only on special
request and after the Company has dismantled and examined the product
concerned. Any such estimates and offers not confirmed in writing are
not binding on the Company. Any expenses incurred by the Company in preparing
an estimate are chargeable to the Buyer if the order to repair is not
finally executed by the Company.
(d) Whereas the Company will comply to the
best of its ability with Buyer's instructions concerning the time
taken for the repair, it cannot be held responsible for inability
to comply with such instructions.
(e) The Buyer will accept full responsibility for and will
indemnify the Company against all loss of or damage to property and keep
the Company fully indemnified against all claims and demands whatsoever
for reparation or negligence and loss of or damage to property caused
or alleged to be caused or arising out of or in consequence of the execution
of the works the subject of these conditions. Further the Company
shall not be held responsible for any damage or loss due to theft, burglary,
fire, explosion, flood, strikes, riots, or force majeure, nor for damage or
loss consequent on testing by driving vehicle on the highway nor during
other test deemed necessary nor during transportation of goods being repaired.
(f) The Copyright for any drawings supplied to or for the Buyer remain
with the Company. Plans required for sub-structures and directions are
furnished by the Company free of cost but without engagement. The particulars
required for them are to be furnished by the Buyer.
PRICES AND DELIVERY:
6. The company reserves the right to
vary its prices in the event of any increase in raw materials or labour
costs, cost of components or accessories or variations
in Customs duty or other tax or levy or
rate of exchange occurring within seven days be or at any time
subsequent to the acceptance of any order.
7. Prices quoted are either ex glasgow
stock or ex-works of other Supplier (depending on quotation). The prices payable
are those applicable at the date of despatch unless specifically stated to
the contrary in the Special Conditions of Sale.
8. The company is entitled to make
partial deliveries and to invoice the Buyer accordingly. Payment of
such invoices shall be due and payable on the same terms and in the same manner
as applicable to an invoice for the full delivery.
9. Goods and equipment will be despatched ex
Glasgow stock or ex other supplier's works. Unless otherwise
stated by the Buyer and agreed in writing by the Company, the Company shall have the
right to choose the method of despatch. All deliveries will be at the Buyer's sole
risk from time of despatch. If special instructions are given
the Buyer will reimburse the Company any cost of transport
of goods in accordance there with.
10. The Buyer shall be responsible for the payment of any import
surcharge or other tax, duty of levy which
may now or hereafter be imposed affecting the subject of this order
and for obtaining any import or
other licences or permissions and complying with any Government or other
official requirement.
TERMS OF PAYMENT:
11. Unless otherwise specifically agreed
in writing by the Company payment shall be effected in £ Sterling without
any deductions. The Company shall be entitled to despatch
consignments C.O.D.
12. If the Buyer shall fail to make full payment on the
due date, The buyer shall pay interest on the amount due until
payment at the rate of 4% (per annum) over the Bank of Scotland base lending
rate current for the time being.
13. Any objection by the Buyer to the invoice must be
notified in writing by the Buyer to the Company within 14 days
after the date of invoice and any complaint or claim relating to the goods
or equipment or otherwise arising out of the delivery of the consignment
and be confirmed immediately in writing. If no such complaint or claim
shall be received by the Company in accordance with these conditions then
the consignment shall be deemed to be in all respects in accordance with
the Contract.
14. (a) Except insofar as the goods
and equipment the subject matter of the Contract and purchased for
re sale, the property in such goods and equipment shall remain
vested in the Company until payment of all claims by
the Company against the Buyer in respect of
such goods and equipment. In the case of goods and
equipment purchased by re-sale, the property therein shall
remain vested in the Company until conclusion
of a legally binding contract for such re-sale or until payment is full
as aforesaid.
(b) In the case of the
goods and equipment purchased for resale then to the extent of the Buyer's
indebtedness to the Company in respect of the goods the Buyer shall:-
(i) Hold
the proceeds of sale or the right to receive the same on trust for the
Company; and
(ii) Place
the proceeds of the sale in a separate account of the Buyer in such a
way as to be identifiable as in
the
beneficial ownership of the Company; and
(iii)
At the Company's request assign the right
to receive the proceeds of sale to the Company.
In the event of the Buyer becoming sequestrated, granting
a Trust Deed for Creditors, becoming apparently insolvent or suffering
any distress on the execution to be levied against it
or entering into any arrangement with its
creditors or (being an individual) becoming subject
to the bankruptcy laws including the Bankruptcy (Scotland) Act 1985 or
(being a Company) entering into liquidation then for the purposes
of amalgamation or reconstruction or having a receiver appointed of the whole or
any part of its assets, the Company without prejudices
to its other rights under these conditions shall be entitled to enter upon any land or
premises where the goods or any product embodying the goods may be for the
time being, to detach the goods if so embodied and to
recover possession of them.
(c) The Company is entitled
to demand a secured charge over the Buyer's property or collateral security
at any time and in respect of any order. No counterclaim
by the Buyer on the Company may be deducted in settlement. In
case of delay in payment or deterioration in the financial status of the
Buyer after conclusion of the execution of the order all debts
resulting from business transactions with the Buyer become due for immediate
cash settlement. This also applies to any bill or cheques not duly met
whether notice of dishonour has been given or not. Further
the Company is entitled to demand payment in advance and may
annul any contract after due notice has been given and claim damaged for consequences of non-observance of the
terms of the contract by the Buyer.
DELIVERY:
15. Times or periods of delivery
or completion of repairs or installation shall not be binding upon the
Company unless they have been expressly confirmed in writing by the Company.
Subject to such confirmation, the following terms will apply.
(a) Subject
to the Buyer having provided the
Company with all delivery information and details required and provided
that all technical details relating to the goods or equipment shall have been
supplied and accepted by the Company the delivery period shall
begin with the conclusion of the Contract unless the Contract shall expressly
provide to the contrary.
(b) The
delivery period or date shall be extended:
(i) In
case of delays caused by strikes, lock-outs or other industrial disputes
or by damage to plant, delays in the supply of raw materials or
components or other causes whatever beyond the direct control of
the Company or any other supplier or sub-contractor, then the period of delivery shall be
extended by such time as the Company shall reasonably consider necessary
in the circumstances.
(ii) In case the
Company shall fail to deliver within the Contract time in breach of the
terms of the Contract and without just
cause
the Buyer may claim from the Company as liquidated
damages and not by way of penalty for each full week of the delay, up
to 0.5% of such contract price. Such sum shall be accepted by the Buyer in full satisfaction of all claims
against the Company in respect or arising out of delay in delivery.
(c) The
delivery period shall be deemed to have been fulfilled
if prior the expiration of such period or any extension
thereof by agreement or under the provisions of these Conditions the goods
or equipment shall have been despatched from the works of other supplier or if they or the
Company shall have notified the Buyer
that the same are ready and available for despatch.
(d) If
the despatch of the goods or
equipment is delayed for reasons beyond the control of the
Company for more than one week from notification to the Buyer that they
are ready and available for despatch, the Company may at their own discretion
store the good or equipment at the cost and risk in all respects of
the Buyer. In case the goods or equipment are warehoused
at the works of the Company or other
Supplier, a weekly storage charge of 0.5% of the contract price
of the stored goods may be charged to the Buyer and pro rata for any period
less than a week.
(e) If
the Buyer shall fail to take delivery of the goods within 14
days after notification of readiness for despatch or after despatch thereof,
the Company shall be entitled on giving the Buyer not less than 14 days
notice in writing, to cancel the Contract and the
Buyer shall be liable to pay the Company compensation for non-fulfillment
of the Contract. In such event the Company shall be entitled
to claim either:
(i) the
actual damage sustained by the Company on proof of such damage or
(ii) estimated
liquidated damages equal to 15% of the selling price of the
goods or equipment of which the Buyer shall have failed to
accept delivery and in this case, no further proof of damage shall be
required.
GUARANTEE:
16. (a) Subject as hereinafter provided, the
Company will either repair in their workshops or replace ex-works or ex-stock, at
the Company's option, any goods, equipment or parts
as are proved to their reasonable satisfaction to have become unserviceable or defective
owing to inferior materials or faulty design or workmanship.
(b) Any goods, equipment or
parts required to be repaired or replaced shall be returned free of postage or freight either to
the works of the Company or the works of other Suppliers, as
the Company shall direct. Any parts replaced shall become
the property of the Company.
(c) This Guarantee shall apply only
to such defects as shall be reported to the Company in writing within
three months after the date of delivery of the goods or equipment to
the Buyer's premises or despatch from the premises of the Company or
other Supplier as the case may where the goods or equipment are sold ex-works.
(d) No liability shall arise under this
Guarantee if any parts other than genuine parts shall have been
fitted into any goods or equipment supplied by the Company or other
Supplier, unless the same shall have been fitted by the Company
or other Supplier.
(e) In the case of any goods,
equipment of parts not manufactured in the workshops of the Company or other Supplier, the Guarantee
is limited to transfer to the Buyer of any claims
which the Company and other Supplier may have against their Supplier.
(f) The Company guarantees the proper workmanship of
repair and the period of guarantee is three months from the date of completion
of the work or in the case of an engine after the engine has be in service
five hundred hours if earlier. The guarantee is limited
to free replacement or repair in the Company's workshop or that of the Company's Accredited
Agents or any part which has become defective due to faulty construction
or material and does not cover damage caused by misuse or
by the fact that the machine has been used for some purpose other than
that for which is was intended. No responsibility can be accepted nor
can any replacement be considered by the Company if Seals
have been broken or removed by the Buyer. Whilst
every care is taken in its workshop the Company cannot accept liability
for consequential loss or damage.The guarantee claims can be
considered only when raised immediately after the
alleged fault have become apparent.
(g) The foregoing provision are in
addition to and in no way retract from the rights of the
Buyer under the Sale of Goods Act 1893 and re-enacted by the Sale of
Goods Act 1979, the Supply of Goods (Implied Terms) Act
1973 and the Unfair contract Terms Act 1977.
CLAIMS:
17. No claim shall be made
by the Buyer whether under the Guarantee or otherwise
howsoever if:
(a) The Buyer shall not
have paid in full all invoices for the goods or equipment supplied by
the Company, or
(b) The Company's representative are denied full and free
right of access to the goods or equipment, or
(c) The Buyer permits any persons other than the
Company or those approved or authorised by the Company
to effect any replacement of parts or maintenance, adjustment or repairs
to the goods or equipment, or
(d) The Buyer has not properly maintained
the goods or equipment in accordance with instructions, pamphlets or
directions given or issued by the Company from time to time.
(e) If any loss or damage shall be caused
by reason of any fault or defect in the installation for which the Company
has supplied goods, material or equipment.
TERMINATION OR FRUSTRATION OF CONTRACT
18. If the Buyer shall commit any breach of the Contract or
become sequestered, grant a trust deed for Creditors, become
apparently insolvent or suffer any distress or execution
to be levied upon the property or assets of the Buyer or make any arrangements
or composition with creditors or commit any act of bankruptcy or if any
petition or receiving order in bankruptcy shall be presented or made against the Buyer
or if, being a Limited Company, any
resolution or petition to wind up the Buyer's company or business shall
be passed or presented (otherwise that for reconstruction
or amalgamation only) or if a Receiver of the Buyer's undertaking, property
or assets or any part thereof shall be appointed, the Company shall have
the right forthwith to determime any order or part of an order then outstanding
upon written notice of such determination being posted or delivered to
the Buyer's last known address. On service of such notice any outstanding
order shall be deemed to have been determined but without prejudice to
any other claim or rights of the Company.
19. If the Buyer shall default in paying any sum
due under the order as and when it shall become due the Company
shall have the right either to suspend further deliveries until the default
be made good or to cancel the order so far as any goods remain to be delivered
thereunder.
20. In the event of war, invasion, act of foreign enemy (whether
war has been declared or not), civil war, rebellion
or military or usurped power of the Company shall be relived of
all liabilities under the Contract to the extent to which fulfilment of
such obligation is prevented, frustrated or impeded as a consequence of
any such event or by any statute, rules, regulations, orders, or requisitions
issued by any Government Department, Council
or other duly constituted authority or by any other cause (whether or
not of like nature) beyond the Company's control.
21. The company reserves the right to sub-contract the fulfilment
of the order (including any installation) or any part thereof.
MODIFICATION AND RETURN OF PARTS:
22. The Company reserves the right
to change, without notice, the specification of
parts, part numbers, drawings, provided that no such alteration shall
materially affect the quality or operation of the goods or equipment.
23. No parts which have been
supplied to the Buyer in accordance with the Buyer's order shall be returned
or surrendered for credit unless:
(a) The Company's prior written
consent shall have been first obtained.
(b) The parts shall be returned
at the cost of the Buyer in the same condition as they were in when despatched
to the Buyer.
(c) The parts accompanied by the
original or a photostat copy of the packing or advice note.
(d) Any handling or re-storage
charge required by the Company is paid.
The Company shall be under no obligation to accept the parts or credit
and any credit allowed by the Company shall in its absolute discretion.
24. The place of performance and venue for all claims
concerning the sale including claims relating to documents and bills is
Glasgow and these conditions and the Contract shall be subject to and
be construed in accordance with Scots Law which shall be deemed to be
proper law of the contract.
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