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Noon Machinery Services

Terms & Conditions of installation, repair and services

Unless otherwise agreed in writing, the installation, repair and service shall be subject to the following terms and conditions.

Definitions

Incorporation of Conditions

Quotations/Prices

Work on Site

If the Services are to be carried out on your premises or at your request at some other site we will need free and safe access to the customer's Equipment, together with proper and safe storage and protection of all goods, tools, plant and equipment and materials we have on site. We may also require additional facilities to carry out the Services such as electricity. You will observe and comply with the latest Health and Safety at Work Legislation and ensure that the site is safe and without risk to the health and safety of all persons working there; and you will hold us harmless against all legal and regulatory proceedings, costs and charges in respect of your failure to do so.

Payment

Payment Terms will be agreed prior to commencement of works and will be detailed on our quotation. In the absence of a quotation they will be as per our standard labour, travel rates and terms as specified in our Account Opening Form. We will accept a signed or typed name in the signatory field (if sent electronically) as your agreement to these terms. All payments will be in pounds Sterling.

Designs Drawings and Specifications

You shall be responsible for the accuracy of any designs, specifications and other data, which you or your employees or agents supply to us, which we use in connection with the Services, even if we examine, inspect or comment upon them. You will hold us harmless against any liability to a third party which we may incur as a result of carrying out the Services in accordance with your instructions or your designs, drawings, specifications or other data.

Warranty

Transportation

Termination of this Contract

We may bring this Contract to an end if you fail to comply with your obligations under this Contract, within seven days of having been notified by us of the relevant failure. We may also bring this Contract to an end immediately if you are the subject of a petition for a bankruptcy order, or you become insolvent or enter into any composition, scheme or arrangement with your creditors. If you are a corporation or other legal person, we may bring this Contract to an end immediately if a receiver (including an administrative receiver) is appointed over any of your assets or an application is made to appoint an administrator for you. If you are in partnership, we may bring this Contract to an end immediately if the partnership is dissolved. We may also terminate this Contract if any proceedings relating to your insolvency are commenced in any country.

If this Agreement ends for any reason, we will be entitled to remove all of our equipment from your premises or from site. You will remain liable to us for any sums which you have not paid, for all work done up to date of termination and for any other breaches of this Contract.

Limitation of Liability

We accept that we are liable for any death or personal injury resulting from our negligence or the negligence of our employees or agents acting in the course of their employment. In relation to defects in goods sold to you by us, we may also be liable under the Consumer Protection Act 1987 or equivalent legislation, but only to the extent that such liability cannot lawfully be excluded.

Apart from our agreement to rectify any defects or errors in the Services as set out according to our Warranty terms and to replace or repair the Customer's Equipment where there is loss or damage to goods in transit as set out according to our Transportation terms:

The limitations and exclusions in this paragraph apply to any claim, whether in contract, tort (including negligence), breach of any statutory duty or implied term or any other claim, except any liability for death, personal injury or defects in goods supplied to you by us as set out above.

The limitations and exclusions in these conditions reflect the value of this Contract to us and are considered to be reasonable. If you require us to accept greater liability we may be prepared to do so subject to agreement of an additional charge to reflect the increased risk and cost of insurance to us.

Force Majeure

We will not be liable to you for any failure to perform our obligations under this Agreement where that failure results from any cause outside our reasonable control, including but not limited to natural occurrences, disruption of power supplies, the action of third parties or industrial action.

Disputes

Any disputes which we cannot settle amicably relating to the nature or quality of the Services will be referred to an expert to be agreed or (if we and you cannot agree the choice of expert within 14 days of an expert being proposed by you or us) appointed at the request of you or us by the President for the time being of the institute of Electrical Engineers. The written report of the expert will as between you and us be conclusive evidence of all matters of fact and all matters opinion set in the report and the charges of the expert shall be borne and paid as the expert may direct.

VAT

Unless indicated otherwise, all sums payable under this Contract are stated exclusive of Value Added Tax (which will be charged at the rate prevailing at the relevant tax point) and any other tax or duty chargeable under any relevant legislation.

Assignment/Third Parties

You will not assign your rights under this Agreement without our express written approval. We may sub-contract the provision of certain of the Services at our discretion. No third party shall acquire any rights under this Contract except as specifically stated in these conditions.

Notices

Any notice to be given by you or us must be in writing and may be delivered by post or electronic mail. Notices to us should be sent to us at the address stated on our quotation, acknowledgement or invoice. Any notice given to you will be sent to you at the address supplied at the time of order. You and we are free to provide an alternative address for notices at any time. Notices sent by first class post will be assumed to have been delivered two working days after they are sent.

Waiver

Any express or implied by us of any failure by you to perform your obligations under this Agreement will not prevent the subsequent enforcement of those obligations. Similarly, any waiver we give will not be taken to be a waiver of any subsequent failure by you to perform that or any other obligation.

Whole Agreement

This Contract constitutes the entire agreement between us relating to the Services and overrides any prior correspondence or statements relating to the Services (including any statements or representations in any advertisements or literature produced by us relating to the Services).

Validity

If any provision of this Agreement is ruled to be valid for any reason, that invalidity will not affect the rest of this Agreement, which will remain valid and enforceable in all respects.

Law

This is Agreement is governed by English Law.

Terms & Conditions of Machinery Sales

Unless otherwise agreed in writing, all machinery sales shall be subject to the following terms and conditions.

Definitions

Buyer: means the person who accepts the Sellers written quotation for the sale of goods or whose written order for the goods is accepted by the Seller

Goods: means the goods (including any installment of goods or any parts of them) which the Seller is to supply in accordance with the Terms.

Seller: means Noon Machinery Services Limited

Contract: means the contract of sale and the purchase of goods

Terms: means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and Seller

Writing: and any similar expression, includes facsimilie transmission and comparable means of communication

Basis of the Sale

The seller shall sell and the buyer shall purchase the goods in accordance with the Sellers written quotation (if accepted by the buyer) or the buyer’s written order (if accepted by the seller) subject to either case these terms, which shall govern the contract to the exclusion of other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to          be made by the Buyer

No variation to these terms shall be binding unless agreed in writing between the authorised representatives of the Buyer and Seller

The sellers’ employee’s or agents are not authorised to make any representations concerning the goods unless confirmed by the Seller in writing. In entering into the contract the Buyer acknowledges that it does not rely on any such representations which are bot so confirmed, but nothing in these terms affects the liability of either party for fraudulent misrepresentation.

Any advice or recommendation given by the Seller or its employee’s to the Buyer or it’s employee’s or agents as to the storage, application or use of Goods which is not confirmed in writing by the seller is followed or acted upon entirely at the Buyers own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

Orders and Specifications

No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative

The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order

(including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).

If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in

accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.

The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

Price of the Goods and Installation

The price of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

Except as otherwise stated in the Seller’s Written quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

Where the Seller agrees to install the goods on behalf of the Buyer the buyer shall be liable to pay

the Seller's charges for such installation. Any installation shall be subject to the Buyer having

previously installed such foundations, electrical, hydraulic and compressed air supplies (and any

other services as may be necessary) as are necessary and to providing such clear and level paved access from a roadside point of delivery to the installation site as may be reasonably necessary.

Terms of Payment

Subject to any special terms agreed in Writing between the Buyer and the Seller.

The Seller will require a deposit as detailed in writing between the Parties to be paid in advance of delivery or the goods being made available for delivery and in the event of nonpayment of the deposit by the agreed date the Seller shall at its option be entitled either to forfeit the deposit and be under no further liability to the Buyer whether to deliver the goods or otherwise or to affirm the contract and recover from the Buyer all losses sustained as a result of non-payment and to insist on payment for such losses and payment of the entire purchase price prior to delivery.

The Seller may invoice the Buyer for the balance of the price of the Goods on or at any time after

delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

Unless otherwise agreed in Writing the Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

Any payment to be made by the Buyer to the Seller shall be made in full without any set off or

deduction there from or any claim or counter claim howsoever arising.

If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:

Cancel the contract or suspend any further deliveries to the Buyer;

Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above the base rate of the company's Bankers from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

Delivery

Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable

for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.

If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

If the Buyer fails to take delivery of the Goods or fails

to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by

reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then,

without limiting any other right or remedy available to the Seller, the Seller may:

Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and

selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

Risk of Property

Risk of damage to or loss of the Goods shall pass to the Buyer:

In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and the cost of installation (if any) and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.

Until such time as the property in the Goods passes to the Buyer the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.

Warranties and Liabilities

Subject to the following provisions the Seller warrants that the Goods will correspond

with their specification at the time of delivery and will be free from defects in material and

workmanship for a period set out by the manufacturers and if different stated on quotation supplied.

The above warranty is given by the Seller subject to the following conditions:

The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

The Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller’s approval;

The Seller shall be under no liability under the above warranty (or any other warranty, condition or

guarantee) if the total price for the Goods has not been paid by the due date for payment;

The above warranty does not extend to parts, materials or equipment not manufactured by the

Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or

guarantee as is given by the manufacturer to the Seller.

Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements ) Order 1976) the statutory rights of the Buyer are not

affected by these Terms.

A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within seven days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.

Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including

any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.

The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

Act of God, explosion, flood, tempest, fire or accident;

War or threat of war, sabotage, insurrection, civil disturbance or requisition;

Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any

governmental, parliamentary or local authority;

Import or export regulations or embargoes;

Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
 

Difficulties in obtaining raw materials, labor, fuel, parts or machinery;

power failure or breakdown in machinery.

Insolvency of buyer

This clause 9 applies if:

The Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

An encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

The Buyer ceases, or threatens to cease, to carry on business; or

The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

If this clause applies then, without limiting any other

right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

General

A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

If any provision of the Contract is held by a court or other competent authority to be invalid or

unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.

Any dispute arising under or in connection with the Contract or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Law Society of England & Wales.

The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the

non-exclusive jurisdiction of the English courts.