Hitex (UK) Webshop

TERMS AND CONDITIONS

(Effective from January 1992)

1.                  DEFINITIONS AND EFFECT OF CONDITIONS

(a)               The Company means Hitex (UK) Ltd.

(b)               These Conditions shall apply to and be incorporated into every Agreement between Hitex (UK) Ltd. and any person, firm or company (“the Customer”) under which the Company supplied goods or services at the request of the Customer, whether for purchase or rental.

(c)                These Conditions shall supersede all earlier conditions of the Company.

(d)               These Conditions shall take precedence over any conditions of the Customer and shall not be varied without the written consent of a director of the Company.

(e)               The Equipment referred to shall include all accessories, tools and fittings and all additions and renewals made to the Equipment with the consent of the Company.

2.                  DELIVERY

(a)               Delivery of the goods to the Customer’s address or any other place stipulated by him shall constitute delivery and the risk therein shall pass upon such delivery to the Customer.

(b)               Any delivery dates quoted whether verbally or otherwise are estimates only and in regard to any such date time shall not be of the essence.

(c)                The Company shall be entitled to make partial deliveries or deliveries by instalments and these Conditions shall apply to each partial delivery.

(d)               Any scheduled order must have all drops completed within 12months of original order date.

(e)               For re-scheduling of delivery dates, 30 days notice must be given in writing, else the original date will be adhered to.

(f)                 Any re-scheduled dates cannot be later than 12 weeks from original date.

(g)               Deviations in quantity of the goods delivered (representing not more than 10% by value) from that stated on the Agreement shall not give the Customer any right to reject the goods or to claim damages and the Customer shall accept and pay at the contract rate for the quantity of goods actually delivered.

3.                  FRUSTRATION ETC. (FORCE MAJEURE)

If the company is prevented at any time from performing any contractual obligation, or if any loss, damage or injury or delay in delivery is occasioned by or due to any cause beyond the Company’s control including (but without prejudice to the generality of the foregoing expression) the commission of any criminal act, shortage of goods, act of war (whether declared or not), civil commotion, accident, strikes or lock-outs, Act of God or any restriction imposed by any local municipal or government authority (including Customs Authorities) whether British or foreign, the Company shall be entitled forthwith to determine the contract and to be discharged from all liabilities whatsoever to the Customer and the Company shall not be liable for any such loss, damage, injury or delay as aforesaid.

4.                  RENTAL PERIODS

Our complete terms and conditions for rental agreements is covered elsewhere.

(a)               The minimum rental period is one working week, and thereafter from week to week terminable by not less than one week’s notice in writing on either side.

(b)               The rental period is deemed to have begun on the day the equipment is delivered to the Customer’s premises. 

5.                  PRICE

(a)               Unless otherwise stated, any prices quoted by the Company, whether for purchase or rental of equipment are:

(i)     exclusive of value added tax and any other taxes;

(j)     exclusive of any release certificates;

and the Company shall charge extra in respect of the above items.

(b)               Prices quoted are those current at the time of quotation and the price payable by the Customer shall be that which is current at the time of delivery to the Customer.  Rental charges shall be at the quoted appropriate weekly rate.  Parts of a week (after the initial term expires) will be charged as a full week.  A week is taken to be 7 consecutive days including the day the hire commenced.

(c)                Where agreed call offs are not adhered to by the Buyer, the Company reserves the right to amend the price structure in accordance with the quantities delivered.

6.                  PAYMENT

(a)               The price or the charges for each amount of rental are payable on demand but in any case must not be paid later than 30 days from date of invoice.

(b)               The company reserves the right to suspend deliveries where payment is not received in accordance with paragraph (a) of this clause or in accordance with any alternative terms of payment agreed in writing.

(c)                Where payment is not made in accordance with the terms of paragraph (a) of this clause hereof the Customer shall pay interest on any unpaid amounts calculated at 8% above HSBC plc’s base rate for the time being in force calculated on a daily basis.

(d)               Where rental payments are not made in accordance with the terms of paragraph (a) of this clause hereof, the Company reserves the right to refuse the Customer access to any scheme by which amounts of rental payments may be offset against the final purchase price of the equipment.

(e)               No cash or other discount is allowed unless agreed in writing.

(f)                 If the Company is able to deliver some items comprising the goods the subject of an Agreement but unable to deliver all such items due to causes beyond its control, including but not limited to the examples referred to in Condition 3 hereof, the Customer shall pay for such items as are delivered.

7.                  TELEPHONE ORDERS

The Customer agrees to send to the Company a written order having a quotable order number in confirmation of any telephoned orders, otherwise the Company cannot accept liability for any duplication of delivery that may occur.

8.                  PASSING AND RESERVATION OF TITLE

(a)               Purchased Goods – the risk in the goods shall pass to the Customer on delivery but the property in the goods shall remain in the Company until full payment has been received.  Until such payment the Customer shall not sell or attempt to sell the goods.  If the Customer nevertheless does purport to sell the goods then without prejudice to any other right or remedy available to the Company then the beneficial entitlement of the Company shall attach to the proceeds of such sale or to the claim for such proceeds.

(b)               Rented Goods – the Equipment remains the property of Hitex (UK) Ltd. and the Customer shall not assign the Agreement or part with, share possession or control of, encumber or otherwise deal with the equipment or allow it to be seized in satisfaction of debt.

(c)                As long as the property in the goods remains in the Company, the Company shall have the right without prejudice to the obligation of the Customer to pay the price, to retake possession of the goods (and for that purpose to go upon any premises occupied by the Customer).

9.                  PERFORMANCE OF EQUIPMENT

(a)               The Equipment shall be in working order and capable of being used for the purpose(s) for which it is ordinarily and reasonably intended.

(b)               The Company shall be deemed to have wholly discharged its obligation under the Agreement upon the Equipment fulfilling the criteria laid down in Clause 9 (a) and shall not be liable contractually or otherwise to any further degree or greater extent due to any extraneous cause which renders or may render the Equipment inoperative or otherwise.  Unless notified in writing by the Customer within 48 hours of delivery, it shall be conclusively presumed that the equipment was received in a fully serviceable condition and in complete accordance with the Customer’s order and the manufacturer’s description.

10.              SOFTWARE

(a)               Where the goods include software and the Customer has been furnished with the developer’s software licence, he shall sign and return it to the Company within 7 days or as otherwise specified in the said licence.

(b)               The licence thereby granted shall continue until or unless either party give to the other party one month’s prior written notice of termination whereupon and before the expiry of which the Customer undertakes to return or destroy the software as the Company shall direct PROVIDED THAT the Company shall only exercise its right or terminate of the continued use or possession of the software by the Customer infringes the developer’s third party rights of the Company is forced to do so by law.

(c)                The Company shall terminate the licence forthwith if the Customer fails or has failed to comply with any of the terms and conditions herein contained including but not limited to breach of copyright, patent or confidentiality.

(d)               The Customer undertakes not to copy (other than for normal equipment operation), reproduce, translate, adapt, vary or modify the software, nor to communicate the same to any third party without the Company’s prior written consent.

11.              DRAWINGS ETC.

All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the sales literature and price lists are approximate only and shall not form part of the Agreement.  In addition, any drawing, technical documents and specifications issued for the use or information of the Customer and such other information as may be supplied shall not be copied, reproduced or communicated to any third party without the Company’s prior written consent.

12.              TRANSPORTATION CHARGES

(a)               A separate charge may be made in respect of delivery.  It is the responsibility of the Customer to arrange the return of any Equipment and to pay any carriage charges involved.

(b)               All packing materials are chargeable in full if not returned.

13.              LOSS AND DAMAGE IN TRANSIT

The Company will refund the cost of or at its discretion replace or repair free of charge any of the goods provided to the Company’s satisfaction to have been lost or damaged in transit up to the moment of delivery provided that within 3 days after receipt of goods in the case of damage, or within 10 days of receipt of invoices in the case of loss, the Customer notifies the Company in writing of the occurrence of the damage or loss, and its nature and extent.

14.              GUARANTEE

In respect of goods the subject matter of any warranty or guarantee given by the manufacturers of the same, the Company guarantees to the Customer that such goods will be free from defects caused by faulty materials or poor workmanship for the period of the guarantee or warranty given by the manufacturers.  Under this warranty the Company will, at its option, either repair or give a replacement of equivalent quality or issue credit to the Customer for any goods found to be defective because of faulty maintenance by the Company or poor workmanship provided that:

a)      the Company is notified in writing within 7 days of the Customer first discovering any such defects and in any event during the currency of such manufacturers warranty or guarantee;

b)      the defective goods are returned to the Company at the Customer’s expense;

c)      examination by the Company of such goods discloses to its satisfaction that such defects exist and have not been caused by misuse, neglect, accident, improper storage, installation or handling or by repair or alteration not effected by the Company and;

d)      the Customer shall  pay to the Company the cost (as certified by the Company) of any examination of such goods as a result of which the Company denies liability.

15.              DAMAGE TO EQUIPMENT

The Customer shall in the use of the said equipment observe all the manufacturer’s instructions and other regulations that may be issued for the proper use thereof and shall be entirely responsible for any damage caused to the said equipment through failure to observe such instructions and regulations or failure to use the same in a proper manner.

16.              CUSTOMER’S RESPONSIBILITY TO THE EQUIPMENT

The Customer shall:

(a)               keep the Equipment in the Customer’s own possession as shown on the invoice supplied and shall not allow the Equipment to be removed from the delivery address without the consent of the Company;

(b)               not subject the Equipment to any misuse or unfair wear and tear and shall use it in a proper manner in accordance with the user manual;

(c)                preserve any identification numbers on the Equipment;

(d)               keep the Equipment in good condition and make good to the Company any loss or damage to the said equipment (fair wear and tear only accepted).  The Company reserves the right to charge for any necessary repairs to or cleaning of the Equipment upon its return;

(e)               immediately notify to the Company any loss of or damage to the Equipment or accessories;

(f)                 pay within 30 days the full cost of any consequential repairs or replacement;

(g)               comply with all Government and manufacturer’s statutes in the use of the Equipment;

(h)               arrange (at the Customer’s own expense) adequate insurance cover for all rented equipment against loss or damage from any occurrence whatsoever until the said equipment is received back at the Company and our approved receipt given.  Where equipment is lost the full rental charge will continue until the replacement cost has been settled in full by the Hirer’s insurers.  In the event of damage the rental charges will continue until a full repair has been effected by the Company.

17.              DEFAULT BY THE CUSTOMER

The Company may terminate the Agreement summarily and recover possession of the Equipment by giving written notice to the Customer if the Customer is in breach of any provision of the Agreement whether in relation to the making of payment or otherwise or if the Customer shall act or omit to act or allow any act or omission which in the opinion of Hitex (UK) Ltd might jeopardise the Company’s rights in the Equipment or any part thereof.

The Agreement shall automatically and without notice terminate and no payment subsequently accepted by the Company without knowledge of the automatic termination shall in any way affect the operation of this clause if the Customer shall go into liquidation (except for the purpose or reconstruction) or if any petition or resolution to wind up the Customer shall be presented or if a receiver is appointed or the Customer’s undertaking property or assets or if a distress shall be levied upon any of the Customer’s property or if the Customer shall commit any act of bankruptcy.

The Company’s rights do not prejudice any other rights of the Company under the Agreement including any claim for payment or arrears or for damages for the breach of the Agreement.  Any waiver by the Company of any breach by the Customer of the Agreement is limited to the particular breach and no delay by the Company to act upon a breach shall be deemed a waiver.

The Customer shall pay to the Company the cost of all repairs required as at the termination of the Agreement in order to render the Equipment in good order and working condition.

18.              EXCLUSION OF LIABILITY

(a)               Except where provided otherwise in these Conditions, the Company shall be under no liability of whatsoever kind howsoever caused whether or not due to the negligence or wilful default of the Company or its servant or agents arising out of or in connection with the goods. All conditions, warranties or other terms whether express or implied, statutory or otherwise are hereby expressly excluded providing that nothing in this paragraph shall exclude or restrict any liability of the Company for death or personal injury resulting from the negligence of the Company or its servants or agents.

(b)               In any event, the Company’s liability shall be limited to direct loss and shall not include indirect or consequential loss.

(c)                The Company shall not be liable for the loss of or damage to software programs during repair or upgrade of any goods whether or not the same are under warranty.

19.              RETURNED GOODS & CANCELLATIONS

(a)             The Customer must telephone the customer service department to request a Returns Number and a Returned Products form, which will be FAXed or emailed to the customer.  This must be completed and returned to the Company with the Returns Number.   The issuing of a returns number does not imply the acceptance of the items or the refund thereof.

(b)             The Customer shall not return goods or cancel orders without the Company’s previous written consent.  Such consent will not be given where goods have been specially purchased by the Company to meet the Customer’s requirements.  If the Company gives such consent, it reserves the right to make a cancellation charge or restocking charge. 

(c)              Where Customer places an order for delivery of goods over a fixed period and those goods benefit from a volume discount related to the total quantity stated on the order, the Customer may not reduce the quantity ordered without the written consent of the Company.  In such cases, the Company reserves the right to levy an alteration charge that based on the difference in unit price between the quantity originally ordered and the unit price appropriate to the quantity actually taken, plus an administration fee.

20.              COPYRIGHT, PATENTS, TRADE MARKS AND INTELLECTUAL PROPERTY RIGHTS

(a)               The Customer acknowledges that rights in respect of trade marks, trade names copyrights, patents and other intellectual property rights connected with the goods do not pass to the Customer.

(b)               The Customer agrees to indemnify the Company against all liabilities costs and expenses which the company may incur as a result of work done in accordance with the customer’s specifications which involves infringement of any patent or other proprietary right.

21.              SUB-CONTRACTING

The Company reserves the right to sub-contract any part of any work or supply of any goods or services.

22.              CONSTRUCTION AND USE

The Company shall not be responsible for adapting or modifying any goods to conform to statutory requirements not current at the time of the acceptance of order unless specifically provided for in any quotation pertaining to the order.

23.              ASSIGNMENT

The benefit of the Agreement may be assigned in whole or in part by the Company without the prior written consent of the Customer.  The Customer shall not assign or transfer or purport to assign or transfer the Agreement or the benefit thereof to any other person.

24.              HEADINGS