Terms & Conditions

DEFINITIONS

In these conditions:

1. ‘The Company means Merlin Power Management.
   ‘Customer’ means the organisation or individuals on whose behalf the order has been placed with the company.
   ‘Order’ means the Customer’s instructions to the Company to supply safe goods or plant hire as appropriate.
   ‘The Price’ means the price of goods specified in the latest price list of the Company or agreed by the Company on acceptance of the Customer’s order.
   ‘The Delivery’ means transportation of goods from the Company or its authorised agent to the Customer to the destination point agreed by the Company at the time of the Company’s acceptance of the order.
   ‘The Contract’ means the Contract formed by the acceptance of the Order by the Company or acceptance of the Customer’s offer on these terms or on these terms as varied by agreement in writing by the Company and if doubt exists as to the terms as varied these terms shall prevail.
   ‘Sale Goods’ means the goods specified as being sold by the Company to the Customer.
   ‘Plant Hire’ means the plant specified as being hired by the Company to the Customer.
   ‘Plant’ covers all classes of plant machinery equipment and accessories and peripherals, cables and attachments thereto which the Company agrees to sell or hire.
   The ‘Goods Price’ means the price for the sale of goods as defined by these conditions.
   A ‘Day’ is 24 hours unless specified in writing.
   A ‘Week’ is five consecutive days calculated from the date plant is delivered to site or where plant is to be collected by the Customer from the date plant is notified as appropriated to the contract by the Company.
   The ‘Hire Period’ shall commence from one minute past midnight of the day plant is delivered to site or appropriated to the Contract as the case may be and shall continue for a minimum of a week and thereafter day by day until: (a) a ‘valid off-hire notice’ is received by the Company where the Company agreed to deliver to site or, in all other cases. (b) The plant is returned to the Company’s premises from which the same were collected.
   A ‘valid off-hire notice’ means a notice received by the Company that the plant is available for collection whereupon the plant from the date and time of receipt of notice shall not thereafter be used by the Customer and, if used thereafter a purported ‘off-hire notice’ shall thereby be invalid.
2. Pre-Contract Statements
   (1) An Order or Orders are accepted by the Company exclusively upon these Conditions and no other Conditions or representations whatsoever referred to in negotiations or set out in the Order or Orders or otherwise shall be incorporated into the Contract unless the Company expressly so agrees in a written memorandum signed on behalf of the Company by a duly authorised person on behalf of the Company.
   (2) Acceptance of all Orders by the Company shall be deemed to be the Company’s place of business at: Shenton House, Walworth Road, Walworth Industrial Estate, Andover Hampshire. SP10 5AZ.
   (3) Any estimate is intended to be valid for only 14 days from the date given but the Company reserves the right to alter the same without notice up to the date of acceptance of contract by the Company.
3. The Order
   (1) No Order by the Customer shall form part of or constitute a Contract between the Customer and the Company unless the same be accepted by the Company.
   2) All telephone Orders received or acknowledged by the Company shall be subject to these terms and subject to the pre-condition (if the same shall constitute a contract) that the Company may withdraw from the same without any reason given and without penalty at any time up to date of delivery. Withdrawal by the Company shall be notified to the Customer in writing and upon notification the Customer shall be released from all liability for payment therefore shall be due at a pro-rata price according to goods actually delivered.
   (3) All written Orders received by the Company shall be subject to these terms and conditions and any acceptance of any order by the Company shall be so subject unless the same shall have been varied in writing by the Company and the memorandum thereof signed by a duly authorised person on behalf of the Company.
   (4) All Orders of whatsoever nature shall be subject to the condition that any goods ordered which are ‘out of stock’ will be automatically placed on back-order by the Company upon acceptance thereof by the Company unless the Customer expressly stipulates ‘ex-stock or cancel’ on placing the Order and Condition 5 referring to delivery being calculated only from date of receipt of goods by the Company from the Supplier.
4. The Price
   (1) Sale of Goods Price
   The goods price shall be that ruling at the date of despatch by the Company and all price quotations by the Company are subject to variation upwards if the Company’s costs rise through circumstances beyond the Company’s control.
   (2) Hire Price The hire price shall be that ruling at the date of acceptance by the Company PROVIDED that the same shall be capable of variation by the Company without pre-conditions upon 24 hours notice in writing to the Customer.
5. The Delivery of Sale Goods
   (1) Any delivery date specified by or agreed by the Company shall be deemed an estimate only and the Company shall not be liable for failure to deliver in accordance with the date unless a written memorandum emanating from the Company and signed by a duly authorised person on behalf of the Company specifies therein that ‘time is of the essence for delivery’ against the delivery date specified and subject to the limitation that in no circumstances shall the Company be liable for any damage or loss arising directly or indirectly out of any delay in delivery.
   (2) Unless time is expressed to be of the essence on delivery in accordance with paragraph (1) above the Customer shall not be entitled to refuse the goods because of late delivery unless the delay shall be within the Company’s control and be unreasonable.
   (3) If any sum should be overdue from the Customer to the Company in respect of any contract or other matter the Company may withhold any goods due for despatch to the Customer under any Contract between the Customer and the Company without prejudice to the Company’s rights under the Contract.
6. Acceptance of Delivery of Sale Goods
   (1) The Customer shall advise the Company and the Carrier in writing of any loss or damage to sale goods within the following time limits:
   (a) Partial loss damage defects or non delivery of any separate part of a consignment of sale goods shall be advised to the Company within 7 days of actual date of delivery or the part of the consignment.
   (b) Non-delivery of a whole consignment of sale goods shall be advised with 14 days of notice of despatch received by the Customer.
7. Payment
   (1) Where any advance payment is required by the Company the performance of the contract by the Company shall be conditional upon receipt thereof by the Company.
   (2) Payment made by Bill of Exchange or cheque shall be deemed not to have been made until the date that the said Bill(s) or cheque(s) are honoured by the Customer and all costs of discounting and/or encashing the same shall be borne by the Customer and be recoverable from the Customer as a debt due.
   (3) Payment terms shall be payment upon completion of services (Less any deposit requested and paid prior to supplies or services commencing) unless a credit account has been approved by the company in which case payment shall be due 30 days from invoice date.
   (4) In the event that payment is not made by the due date expressly agreed by the Company or imposed by these terms the Company shall (without prejudice to any other rights under the contract) be entitled to charge interest on the or any amount outstanding beyond the due date (both before and after any judgement therefore) at the rate per annum equal to 3 per cent above Barclays Bank minimum lending rate for the time being prescribed or 3 per cent per month whichever shall be the higher at the date payment became due.
8. Risk and Title in Sale Goods
   (1) The risk in the goods shall pass to the Customer as soon as the goods are delivered.
   (2) (a) Title in the goods shall not pass to the Customer until the date on which the entire contract price has been paid in full.
   (b) If the Customer fails to pay any sum due to the Company forming part of the contract price by the date due the Company may take possession of the goods and the Customer grants to the Company an irrevocable license to enter upon any premises of the Customer for that purpose.
   (c) Until the earliest to occur or either:
   (i) Recovery of physical possession of the goods by the Company in accordance with clause 8(2) above or
   (ii) Payment in full of the contract price to the Company.
   The Customer agrees to hold the goods as bailee of the Company.
9. Specification of Sale Goods
   (1) All data containing specification of weights dimensions quantities and the like are hereby declared to be approximate only (for where tolerances are prescribed to be within those tolerances) as are also all weights and dimensions of shipments.
   (2) The Company reserves the right without prior notice to make design changes to modifications or alterations as part of a continuous programme of product improvement or to assist product availability with regard to goods manufactured by the Company.
   (3) All goods are sold as not being fit for any particular purpose and the Customer must satisfy himself that the specifications of the goods or their fitness are suitable for his purpose and the Company shall have no liability thereof.
   (4) The Customer shall arrange for inspection of all goods immediately upon delivery and shall within 7 days notify the Company of any alleged damage shortage loss or defect or other particulars by reason of which it alleges the goods supplied do not conform to the contract and in absence of such notice within the time specified the goods shall be deemed to have been supplied in accordance with the contract and accepted by the Customer and all claims actions rights or remedies claiming the goods are not in conformity with the contract shall be deemed waived by the Customer.
   (5) Upon notice given by the Customer to the Company under paragraph (4) the Customer shall:
   (i) preserve the goods intact and as delivered for the period of 14 days during which the Company it’s servants or agents shall have the right (and an irrevocable licensed is hereby given for the said period for entry to the Customer’s premises at reasonable hours for this purpose) to enter the Customer’s premises to inspect and investigate the complaint and
   (ii) if the Customer shall prohibit restrict or impede the Company’s rights hereunder during the aid period the Company shall be released from all liability therefore and the goods shall be deemed to have been accepted by the Customer in accordance with the terms of the contract.
10. Company warranties of Sale Goods
    Provided the goods are properly stored and used by the Customer and subject to the exclusions referred to in these terms the Company warrants that:
    (a) for a period of 12 months Goods manufactured by the company are free from defects attributable to faulty design or workmanship only insofar as such faults should have been detected upon visual examination.
    (b) for a period of 12 months goods pre-fabricated or manufactured by the Company are free from defects attributable to faulty design or workmanship only insofar as such faults should have been detected by expert skill in manufacture.
11. Termination
    The Company may terminate the contract forthwith by written notice to the Customer upon the happening of any of the following:
    (1) Where full payment or any specifically agreed part payment is not paid by the due date.
    (2) Where any Bill of Exchange of Cheque tendered by the Company in full or part payment is not honoured.
    (3) Where the Customer being an individual commits any act of bankruptcy or being a Company or corporation goes into liquidation appoints a receiver of its assets makes a composition with its creditors or by virtue of Companies Acts (as amended or any replacement thereof) is deemed unable to pays its debts.
    (4) Where the Customer commits a breach of any of these items.
    (5) Where the Customer commits a breach of any term of any other contract in existence between the Company and the Customer.
    (6) Without prejudice to any rights of the Company to recover goods delivered to the Customer or demand the price thereof.
12. Manufactured and Pre-Fabricated Sale Goods
    Upon acceptance of Order by the Company to supply manufactured of pre-fabricated goods and materials and any materials are applied to the contract or to the process of manufacture of the goods the Company shall be entitled upon breach of contract by the Customer or failure to make payment of the full price by the due date to liquidated damages in a sum equal to the full contract price without further proof of loss by the Company and without deduction therefrom of any counter claim or set-off arising under the or any other contract in existence between the Customer and the Company.
13. Additional Terms for all Plant Hire
    (i) The Customer shall be responsible for loading and unloading in all cases save where carriage is the agreed responsibility of the Company.
    (ii) The plant hired shall be deemed to be supplied in good and working order and accepted as such unless written notice thereof is given to the Company within 24 hours.
    (iii) During the period of hire the plant shall be entirely at the Customer’s risk and the Customer shall return the same to the Company in the same condition as the same was first hired.
    (iv) The Customer shall at all times allow the Company, it’s Servants or Agents access to hired plant for inspection and repair and shall be deemed to grant all and any appropriate unconditional licence to enter any property of the Customer or property to which the Customer has access.
    (v) Any breakdown or unsatisfactory working of hired plant shall be notified immediately to the Company and allowance against hire charges for any breakdown time where the plant is wholly inoperable shall only be permitted from date and time of receipt by the Company of the notification.
    (vi) The Customer shall fully and effectively indemnify the Company against all loss and damage howsoever caused by the Customer due to the negligence misdirection or misuse of the hired plant by the Customer, it’s Servants or Agents and shall be fully responsible for daily and routine maintenance of hired plant ensuring the same is properly provided with oil fuel water and lubricants at all times.
    (vii) In no circumstances, save for personal injuries caused by the negligence of the Company, shall the Company be liable for any consequential loss or damage due to or arising from the use of the hired plant by the Customer.
    (viii) Without prejudice to any other rights the Company may have in the event that the Customer shall part with possession of rehire or sub-let the plant to any third party, the Customer shall indemnify the Company against all costs and expenses to secure recovery of the same or at the Company’s option shall pay the Company the capital cost thereof in the event the same is not re-delivered to the Company forthwith upon termination of hire.
    (ix) The Customer shall stipulate the location of all hired plant when requested so to do and the same shall not be moved from the said location without the written consent of the Company.
    (x) The Company shall be entitled to terminate the hire of any hired plant without condition upon the giving of 24 hours written notice whereupon the same shall be forthwith returned to the Company by the Customer.
14. Force Majeure
    In the event of riots civil disturbance strikes industrial disputes fire floods heat frost storm or other intemperate weather Act of God acts of the Queen’s enemies or war (whether declared or not) or other hostilities carried on by any parties whatsoever restraints of rulers of peoples including interference by department of governments whether in the United Kingdom or abroad perils of the land sea or air breakdown of machinery shortage of raw materials or fuel or labour shortages or breakdown of shipping or other means of transport failure to delay by customary suppliers or sub-contractors of the Company (whether whose involvement in the Company’s performance of the contract is known to the Customer or not) to provide materials required in the production of the goods or any other unforeseen or exceptional circumstances whatever affecting or hindering the performance of the contract by the Company the Company may in it’s absolute discretion either:
    (i) terminate the contract and return any advance payment made in respect thereof to the Customer or
    (ii) delay delivery for such period or periods as shall consider necessary and in either case the Customer shall have no claims whatsoever against the Company in respect of such termination.
15. Exclusion
    Except as provided herein all other conditions warranties terms representations and statements whatsoever whether expressed or implied by statute custom or otherwise are hereby excluded.
16. Notices
    Notices shall be made in writing and posted in a first call pre-paid envelope to the Customer’s or Company’s address as shown on the Order or failing that to the address at which the party reasonably believes the other to be carrying on business or in the case of a limited Company to it’s registered office.
    A notice shall be deemed to have been served at the time of posting.
17. Liability
    (a) The Company will accept liability for direct physical injury or other physical damage to persons which is caused by the negligence of the Company or its employees and the maximum liability of the Company or its employees and the maximum liability of the Company under these conditions in the case of damage to property shall in no case exceed the contract price of the goods or, in plant hire cases, the hire price for one week.
    (b) In no event shall the Company be liable for incidental consequential damages or any loss of business profit.
18. General lien
    The Company shall have a general lien over any goods of the Customer in its possession for all moneys due from the Customer to the Company. If any lien is not satisfied within 14 days of such moneys becoming due the Company may in its absolute discretion sell the goods as agents for the Customer and apply the proceeds towards the money due to it and the expenses of the sale and shall account to the Customer for all balance (if any) remaining and thereupon be discharged from all liability whatsoever in respect of the goods.
19. Construction and Interpretation
    The interpretation of these conditions of sale shall be by reference to English Law and be judged in the Courts of England and the Customer agrees that the Courts of England shall adjudicate upon any disputes not withstanding that the Customer shall be domiciled or resident outside England and Wales.