Intercontrol Metering Pumps Ltd
Terms and Conditions of Trade
1.Definitions and Interpretation
These terms apply to all trading relationships between Intercontrol Metering Pumps Ltd (Intercontrol) and its Customers, and are supplemented by particular terms as follows:-
“Contract” means a contract under the terms of which Intercontrol is liable to supply Goods.
“Customer” means the party obtaining Goods from Intercontrol under the terms of a Contract.
“Goods” covers all plant, pumps, machinery, equipment and accessories for such things which are the subject of a sale by Intercontrol, or Services provided together with any tools or equipment temporarily on site for use by Intercontrol in fulfilling the Contract requirements.
“Services” means the provision by Intercontrol of labour and other activities for the repair or maintenance of plant or the installation of any pump, plant, equipment or accessories and any associated items.
These Terms and Conditions of Trade apply exclusively. Any terms and conditions of the Customer which conflict with, differ from or supplement these Terms and Conditions are hereby rejected and do not become an integral part of the Contract, unless Intercontrol has expressly consented to their application. In particular, consent is not deemed to be given if, even with knowledge of the Customer’s terms and conditions, Intercontrol, without any reservation, accepts orders, provides Goods or Services, or directly or indirectly refers to letters etc. which contain the Customer’s or third-party terms and conditions.
2.Price
Quotations and / or estimates provided by Intercontrol shall only indicate a willingness of Intercontrol to enter into a Contract on the terms shown provided:-
(i)that they are in writing, and (ii) they will only remain valid for 30 days from the date of issue unless renewed in writing by Intercontrol or the quotation and / or estimate expressly states otherwise.
Oral orders received to supply Goods will be subject to these Terms and Conditions of Trade.
Quotations and / or estimates only relate to the type and quantity of Goods identified and may not be applicable if different types or quantities of Goods are ordered.
Quotations and / or estimates are made subject to Intercontrol’s costs at the time of quoting. Increases or decreases in these costs and any change in any rates, prices, or charges or upon any change in or imposition of any new governmental taxes, levies or contributions in connection with the Contract will entitle Intercontrol to make an addition to or a deduction from the price quoted, unless otherwise agreed and confirmed in writing by Intercontrol.
Quotations and / or estimates are exclusive of VAT which shall be due at the rate applicable to the transaction at the date of invoice.
Quotations and / or estimates for Goods to be delivered at the Customer’s site will only remain valid if access to the site is available to Intercontrol on the date specified for performance and thereafter without interruption or with only such interruptions as are contemplated in the quotation and / or estimate.
An order shall only become a binding Contract on Intercontrol and the Customer when a written order is placed or it is acknowledged in writing by Intercontrol.
If Intercontrol is denied access to site, or the performance of their obligations under a Contract is hindered for any reason other than Intercontrol’s default under the Contract, the Customer shall be liable for any additional costs incurred by Intercontrol as a result.
3.Payment
Intercontrol reserves the right to require full or partial payment in advance of delivery following the issue of a quotation and / or estimate or the receipt of an order in respect of Goods or in any other circumstances as it determines.
Payment of Intercontrol’s invoices in respect of sales of Plant and Pumps, shall be made within 30 days net from the date that the invoice was rendered or at such other time as agreed in writing.
Payment shall normally be made in GB£ sterling unless otherwise agreed in writing.
No discounts, commissions, or rebates shall be allowable except as detailed in any quotations and / or estimates issued in writing by Intercontrol.
In accordance with The Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by The Late Payment of Commercial Debts Regulations 2002, and any subsequent amendment thereto, Intercontrol reserves the right to charge interest on overdue invoices which shall accrue from the date when payment becomes due, from day to day, until the date payment is received by Intercontrol at the rate of 8% above Bank of England base rate applicable from time to time together with all administration and recovery charges permitted by law.
If payment is more than 30 days overdue, or the credit facility is exceeded, Intercontrol reserves the right to suspend its performance of any of its Contracts with the Customer and the Customer authorises Intercontrol to access the relevant site to recover any Goods without prior notice.
The Customer waives all rights to all outstanding and any future claim and rights of set-off against any payments due under any Contracts with Intercontrol and agrees to pay Intercontrol all amounts owing to Intercontrol regardless of any equity, set-off or cross-claim on the part of the Customer against Intercontrol.
The Customer agrees to the right of Intercontrol to off-set any monies due under any Contract with Intercontrol against all monies due to Intercontrol if settlement is overdue by more than 30 days.
If the Customer terminates the Contract for supply of Goods prior to delivery for any reason whatsoever, other than gross negligence or a breach of contract by Intercontrol, the Customer agrees to pay Intercontrol all fees, charges and costs that Intercontrol may incur due to this termination.
4. Credit Facility
Intercontrol may at any time in its sole discretion offer or withdraw any credit facility allowed to a Customer, or to request a Parent Company Guarantee in its preferred form to secure future payments.
If the total amount due to Intercontrol from a Customer exceeds the amount of the Customer’s authorised credit limit, Intercontrol shall be entitled to payment on demand of the amount by which the credit limit has been exceeded.
5. Recommendations
Any advice or recommendation given by Intercontrol to the Customer as to fitness of any Goods for any particular purpose, application, or use which is acted upon by the Customer shall be entirely without liability for Intercontrol unless Intercontrol has been provided in writing with all information relevant to such particular purpose, application, or use and Intercontrol’s recommendation is confirmed in writing. Intercontrol will have no liability to the Customer for any information or recommendation given in good faith by Intercontrol which proves to be incorrect or inaccurate because of incorrect or incomplete information supplied by the Customer.
6. Delivery
Unless the manner of delivery is specifically identified in the quotation and / or estimate Intercontrol shall have the sole discretion as to the method of transport to be adopted.
A charge will be made for packaging and delivery dependant upon the nature of the Goods supplied and whether made by post, carrier, vehicle or otherwise.
Where Intercontrol agrees to deliver Goods, Intercontrol shall only be obliged to deliver the Goods as near to the agreed place of delivery as a safe hard road surface permits. If Intercontrol agrees to relax this condition at the Customer’s request, the Customer agrees to indemnify Intercontrol for any loss, damage, injury or other costs incurred as a result.
Goods held by Intercontrol pending receipt of delivery instructions after the agreed delivery date shall be subject to Intercontrol’s standard storage charges.
Intercontrol may deliver goods by instalments where the Goods are capable of division into units.
The risk of accidental loss, accidental deterioration of the goods shall pass over to the Customer no later than at hand-over. If the goods sold are to be delivered to a place other than the place of performance the risk of accidental deterioration of the goods as well as the risk of delay shall pass over as soon as the goods are delivered to the haulier, the freight forwarder or to any other person or organisation appointed to despatch the goods. Insofar as acceptance has been agreed, this shall count for the passing of risk. The statutory regulations in contracts for services law shall, moreover, also apply for an agreed acceptance. If the Customer is in default with taking delivery of the goods, this shall be the equivalent in terms of the passing of risk as hand-over and/or acceptance.
7. Warranty
Goods will be sold by Intercontrol upon and subject to the manufacturer’s standard form of warranty as current at the time of supply, a copy of which is available on request. No variation to the form of warranty will be binding on Intercontrol unless specifically agreed in writing by an authorised representative of Intercontrol.
Material in catalogues, brochures and any other publication or display does not form part of the description of the Goods for the purposes of Intercontrol’s warranty. Technical specifications, materials, colours and design details are subject to change without notice. Colour indications are necessarily approximate, by reason of inevitable variations in the processes of manufacture and reproduction.
Intercontrol gives no warranty as to the suitability of the Goods for the purpose of the Customer and the Customer confirms that it has satisfied itself in this regard. The Customer must ensure that it complies with all requirements of the original manufacturer relating to the Goods, their transportation, storage, installation and use.
8. Time for Performance
No provision or stipulation as to the time within which Intercontrol shall perform its obligations under any Contract shall be, or be deemed to be, of the essence.
9. Customer’s Obligations
The Customer shall ensure that all consents, permissions and approvals necessary to enable Intercontrol to perform the Contract(s) have been, or will be, obtained by others. Intercontrol shall have no responsibility whatsoever to obtain the same.
The Customer must ensure that Goods supplied by Intercontrol are used and operated by trained and competent operators and in accordance with the manufacturer’s, or Intercontrol’s, recommendations and safety instructions. The Customer shall have sole responsibility for the preparation and implementation of method and risk assessments in respect of any work involving the use of the Goods. The Customer indemnifies Intercontrol against any claim against Intercontrol (and all associated costs) resulting from any breach of this provision.
10. Export Restrictions
Shipment and services (the fulfilment of contract) shall be under the proviso that fulfilment is not being restricted by any national or international regulations, particularly export control regulations and embargoes or any other restrictions. The contract partners shall obligate themselves to provide all information and documentation needed for the export / domestic shipment / import. Delays caused by export checks or licensing procedures shall override any lead times or deadlines stipulated. If any required licenses for certain items cannot be obtained in due time, we reserve the right to withdraw this offer or, respectively, to withdraw from an already concluded contract in whole or in part. Insofar, and because of the aforementioned transgression of deadlines, all kinds of Customer claims of compensation are excluded. Please note that the local technical services can only be affected in accordance with the actual embargo situation and in case that there is no official travel warning. In the exceptional case that the Customer intends to pass on goods, software and/or technology (“Goods”) – supplied by Intercontrol – to third parties, the Customer must comply with the applicable provisions of national and international (re-)export control laws. In any case, the Customer must observe the (re-)export control regulations of the Federal Republic of Germany, the European Union and the United States of America (insofar as these apply due to the origin of goods) before passing on the Goods to third parties. The Customer shall ensure such compliance by taking appropriate measures before passing on the Goods to third parties. The Customer also shall ensure that the (re-)export restrictions as well as any possible further restrictions of Intercontrol on (re-)export are passed on these third parties and that any further potential resellers of these Goods are also made aware of such (re-)export restrictions. Insofar as it is necessary for Intercontrol or the authorities to carry out export control checks, the Customer shall, upon request, immediately provide Intercontrol with all information about the final recipient, the final destination and the intended use of Intercontrol Goods as well as any export control restrictions applicable in this respect. The Customer shall indemnify Intercontrol in full against all claims asserted against Intercontrol by authorities or other third parties due to the Customer failure to comply with the aforementioned export control obligations and shall undertake to reimburse Intercontrol for all losses and expenses incurred in this connection.
11. Default
Intercontrol may by written notice:-
(i) terminate any or all Contracts with the Customer in the event that the Customer shall (being a corporation) go into liquidation whether voluntary, compulsory or under supervision or have a receiver or administrator appointed or (being a partnership or individual) enter into any agreement with or for the benefit of its creditors or become bankrupt or otherwise insolvent; and / or
(ii) terminate a Contract with the Customer if the Customer commits a breach of the terms and conditions of that Contract and fails to rectify such breach within 7 days of receipt of written notice requiring it to do so.
12. Limits of Liability
(i) All warranties, representations, terms, conditions and duties implied by law relating to fitness, quality and / or adequacy are excluded to the fullest extent permitted by law.
(ii) If Intercontrol is found to be liable in respect of any loss or damage to the Customer’s property the extent of the liability of Intercontrol will be limited to the retail cost of replacement of the damaged property.
(iii) Any defective Goods must be returned to Intercontrol, or the manufacturer for inspection if requested before Intercontrol will have any liability for defective Goods.
(iv) Intercontrol shall have no liability to the Customer if, without just cause, any monies due in respect of the Goods have not been paid in full by the due date for payment.
(v) Intercontrol shall have no liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of the defective Goods after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
(vi) The Customer shall give Intercontrol a reasonable opportunity to remedy any matter for which Intercontrol is liable before the Customer incurs any costs and / or expenses in remedying the matter itself. If the Customer does not do so Intercontrol shall have no liability to the Customer.
(vii) Intercontrol shall have no liability to the Customer to the extent that the Customer is covered by any policy of insurance arranged as a result of the Contract and the Customer shall ensure that their insurers waive any and all rights of subrogation that they may have against Intercontrol.
(viii) Intercontrol shall have no liability to the Customer for any:- a) consequential losses (including loss of profits and / or damage to goodwill);
b) economic and / or other similar losses;
c) special damages and indirect losses; and / or
d) business interruption, loss of business, contracts and / or opportunity.
(ix) Intercontrol’s total liability to the Customer under and / or arising in relation to any Contract shall not exceed 5 times the price of the Goods under that Contract or the sum of £5,000 whichever is the higher. To the extent that any liability of Intercontrol to the Customer would be met by any insurance of Intercontrol then the liability of Intercontrol shall be extended to the extent that such liability is met by such insurance.
(x) Each of the limitations and /or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
a) Liability for breach of contract;
b) Liability in tort / delict (including negligence); and
c) Liability for breach of statutory and / or common law duty; except clause 11(ix) above which shall apply once only in respect of all the said types of liability.
(xi) Nothing in this contract shall exclude or limit the liability of Intercontrol for death or personal injury due to the negligence of Intercontrol nor exclude or limit any other type of liability which Intercontrol is not permitted to exclude or limit as a matter of law.
13. Intercontrol’s Intellectual Property
All drawings, designs, illustrations and samples supplied to the Customer shall remain the property of Intercontrol and shall be returned to Intercontrol immediately upon Intercontrol’s request. All copyrights, designs, patents and other intellectual property rights of Intercontrol in or relating to the Goods will remain the property of Intercontrol at all times.
14. Sub-contractors
Intercontrol reserves the right to perform any of its obligations under any Contract through its agents or subcontractors.
15. Events Outside Intercontrol’s Control
Intercontrol shall not be liable to the Customer if the performance of any of its obligations under any Contract is prevented or hindered by circumstances outside Intercontrol’s reasonable control including but not limited to fire, accident, industrial disputes, shortages of material and power, failure of Intercontrol’s suppliers or other Force Majeure.
16. General
These terms and conditions may be updated at any time without notice. The most recent version shall apply to any new Contract entered into.
These terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
No terms which are orally agreed shall form part of a Contract unless confirmed in writing.
No variations to the Contract shall be effective unless and until accepted in writing by an authorised Manager or Director of Intercontrol and the Customer.
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Intercontrol which is not set out in the Contract.
Failure by Intercontrol to enforce a term of a Contract shall not prevent the subsequent enforcement of that or any other terms of a Contract.
Any Contract incorporating these Conditions creates no rights enforceable by any party which is not a party to it under The Contracts (Rights of Third) Parties Act 1999.
In the event of conflict between these terms and any term expressly stated in a written quotation and / or estimate, the terms confirmed in any acknowledgement of order shall prevail.
Goods provided by Intercontrol under this Contract shall remain at all times the property of Intercontrol subject only to any specific terms agreed whereby title is passed to the Customer.
The Customer shall not assign any right or liability under a Contract without the express written consent of an authorised signatory of Intercontrol. Intercontrol may assign a Contract.
The invalidity or unenforceability for any reason of any clause of these Conditions shall not affect the validity and enforceability of the remainder.
17. Dispute Resolution
If any dispute or difference arises in connection with any Contract (other than any dispute relating to sums due to Intercontrol) between Intercontrol and the Customer will, unless it has been resolved between them within 14 days of the dispute arising, attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties the mediator will be nominated by CEDR.
18. Governing Law
The governing law of all Contracts is English Intercontrol Metering Pumps Ltd
November 2023