These conditions apply to all contracts for the supply of goods or services by Myrak (‘Myrak’) and unless agreed in writing by the company, no other conditions shall apply to the contract, irrespective of any conditions printed on the customers order form. The contract or conditions means these terms and conditions and the whole of the contents of the document of which they are attached or on which they are printed. Customer means the person or company who is the purchaser of the goods.
2.1 All orders are subject to the goods being available. No verbal agreement to supply goods is effective unless specifically stated in writing with all charges detailed. 2.2 No variation to these conditions shall be binding unless agreed in writing between the customer and Myrak. 2.3 Myrak’s employees or agents are not authorised to make any representations concerning the goods unless confirmed by Myrak in writing. In entering into the contract the customer acknowledges that it does not rely on any such representations, which are not so confirmed. 2.4 Any advice or recommendation given by Myrak or its employees or agents to the customer or its agents as to the storage or use of the goods which is not confirmed in writing by Myrak is followed or acted upon entirely at the customers own risk, and accordingly Myrak shall not be liable for any such advice or recommendation which is not so confirmed. 2.5 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 Myrak shall be subject to correction without any liability on the part of Myrak. 2.6 No order which has been accepted by Myrak may be cancelled by the customer except with the agreement in writing of Myrak and on terms that the customer shall indemnify Myrak 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 Myrak as a result of cancellation.
3.1 Except as otherwise stated under the terms of any quotation or in any price list of Myrak, and unless otherwise agreed in writing by Myrak, all prices are given by Myrak on an ex works basis, and where Myrak agrees to deliver the goods otherwise than at Myrak’s premises, the customer shall be liable to pay Myrak’s charges for transport, packaging and insurance. 3.2 The price is exclusive of any applicable value added tax, which the customer shall be additionally liable to pay to Myrak. 3.3 Payment for the goods shall occur on the date provided for in this contract or at any time after Myrak has notified the customer that the goods are ready for collection or (as the case may be) Myrak has tendered delivery of the goods. 3.4 The customer shall pay the price of the goods on the due date for payment and Myrak 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 customer. The time of payment of the price shall be of the essence of the contract. Receipts for payment will be issued only upon request. 3.5 If the customer fails to make any payment on the due date then, without any prejudice to any other right or remedy available to Myrak, Myrak shall be entitled to: 3.5.1 Cancel the contract or suspend any further deliveries to the customer. 3.5.2 Appropriate any payment made by the customer to such of the goods (or the goods supplied under any other contract between the customer and Myrak) as Myrak may think fit (notwithstanding) any purported appropriation by the customer); and 3.5.3 Charge the customer interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent pet annum above Barclays bank base rate 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).
In order to reserve goods to be held by us for a customer a down payment shall be paid on agreeing the sale price and in the event the customer fails to pay the balance when due we reserve the right at our sole discretion to retain the down payment as compensation for administration costs, inconvenience, loss, storage charges and the like. All other payments made as noted on this form are non refundable.
Customers unable to complete payment on the due date for payment will be notified and if no satisfactory written contact is received within 14 days, Myrak reserves the right to sell the goods and any losses incurred will be charged to the customer, including all costs of storage, security and insurance.
Myrak does not warrant that the goods comply with any government regulations, CE marking, road traffic legislation, health and safety specifications or otherwise. The customer is advised to ensure that the goods comply with all relevant regulations and to carry out any relevant tests as necessary by professionally qualified engineers to ensure the safe use of the goods. Operators should have full instructions on the operation of all equipment and have the necessary qualifications and certification as required.
The customer warrants that any goods taken in part exchange for goods sold to the customer by Myrak are its unencumbered property free from all liens encumbrances and third party interests including any hire purchase, lease or finance agreement. Goods taken in part exchange must be delivered to Myrak in the state in which they were examined or described and no responsibility will be taken by Myrak for the protection of these goods until they are in the possession of Myrak and have been signed for. Myrak must have these goods in their possession prior to the delivery of purchased goods. The customer further agrees to indemnify Myrak against any future third party claim on the part exchanged goods.
8.1 Risk of damage to or loss of the goods shall pass to the customer at the time when Myrak notifies the customer that the goods are available for collection or, if before, at the time the goods are collected by the customer or its agent; or in the case of goods to be delivered otherwise than at Myrak’s premises, at the time the goods leave Myrak’s premises. 8.2 Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the customer until Myrak has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by Myrak to the customer for which payment is then due. 8.3 Until such time as the property in the goods passes to the customer, the customer shall hold the goods as Myrak’s fiduciary agent and bailee, and shall keep the goods separate from those of the customer and third parties and property stored, protected and insured and identified as Myrak’s property, but the customer shall be entitled to use the goods in the ordinary course of its business. 8.4 Until such time as the property in the goods passes to the customer, Myrak shall be entitled at any time to require the customer to deliver up the goods to Myrak and, if the customer fails to do so forthwith, to enter upon any premises of the customer or any third party where the goods are stored and repossess the goods. 8.5 The customer shall not be entitled to pledge or in any way change by way of security for any indebtedness any of the goods, which remain the property of Myrak, but if the customer does so all moneys owing to Myrak shall (without prejudice to any other right or remedy of Myrak) forthwith become due and payable.
9.1 Delivery of the goods shall be made by the customer collecting the goods at Myrak’s premises at the agreed time or at any time after Myrak has notified the customer that the goods are ready for collection or, if some other place for delivery is agreed by Myrak, by Myrak delivering the goods to that place. 9.2 Any dates quoted by Myrak for delivery of the goods are approximate only and Myrak 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 Myrak in writing. The goods may be delivered by Myrak in advance of the quoted delivery date upon giving reasonable notice to the customer. 9.3 Where the goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Myrak to deliver any one or more of the instalments in accordance with these conditions of any one or more instalments shall not entitle the customer to treat the contract as a whole as repudiated. 9.4 If Myrak fails to deliver the goods (or any instalment) for any reason other than any cause beyond Myrak’s reasonable control or the customers fault, and Myrak is accordingly liable to the customer, Myrak’s liability shall be limited to the excess (if any) of the cost to the customer (in the cheapest available market) of similar goods to replace this not delivered over the price of the goods. 9.5 If the customer fails to take delivery of the goods or fails to give Myrak adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the customers reasonable control or by reason of Myrak’s fault) then, without prejudice to any other right or remedy available to Myrak, Myrak may: 9.5.1 Store the goods until actual delivery and charge the customer for the reasonable costs (including insurance) of storage; or 9.5.2 Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the customer for the excess over the price under the contract or charge the customer for any shortfall below the price under the contract.
10.1 In the case of new equipment, Myrak will pass as far as it is able the benefit of any manufacturer’s warranty to the customer in the way authorised by that manufacturer. If Myrak carry out any work on goods covered by a warranty on no account are they liable to replace or provide loan equipment while the work is being carried out. All equipment must be returned to Myrak for warranty work to be done and collected from Myrak when completed at the customers own cost. Remember, if you do not service your equipment at the correct intervals your warranty may be jeopardised. If in doubt please ask. 10.2 Subject are expressly provided in these conditions, 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. 10.3 Where the goods are sold under a consumer transaction (as defined by the Consumer Transaction (Restrictions on Statements Order 1976) the statutory rights of the customer are not effected by these conditions. 10.4 The customer confirms that it has been given complete access to carry out a careful and thorough inspection of the goods and confirms that it accepts the goods in the condition, which would be revealed by such inspection. The customer shall not be entitled to reject the goods and Myrak shall have no liability for any defect in the goods and the customer shall be bound to pay the price. 10.5 Notwithstanding the provisions of clause 10.6 Where any valid claim in respect of any of the goods based on any defect in their quality or condition is accepted by Myrak in its entire discretion it shall be entitled to replace the goods (or the part in question) free of charge or, at Myrak’s sole discretion, refund to the customer the price of the goods (or a proportionate part of the price), but Myrak shall have no further liability to the customer. 10.7 Except in respect of death or personal injury caused by Myrak’s negligence, Myrak shall not be liable to the customer 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 any indirect, special or consequential loss or damage (whether for loss or profit or otherwise), costs expenses or other claims for compensation whatsoever (whether caused by the negligence of Myrak, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the customer, and the entire liability of Myrak under or in connection with the contract shall not exceed the price of the goods, except as expressly provided in these conditions. 10.8 Myrak shall not be liable to the customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of Myrak’s obligations in relation to the goods, if the delay or failure was due to any cause beyond Myrak’s reasonable control.
Customers storing or leaving their goods at Myrak Ltd’s premises do so entirely at their own risk and fully indemnify Myrak against any claim loss or damage caused by their goods including but not limited to any breach of Health & Safety regulations caused by such goods. Hazardous, toxic, drugs or any dangerous or illegal goods are not allowed to be stored under any circumstances. Customers not collecting goods as requested on the agreed date for collection will be requested to collect them and unless the goods are collected or a written agreement is reached to extend the storage arrangements within 14 days, Myrak will dispose of the goods by either sale or whatever means deemed necessary. All costs incurred by Myrak shall be borne by the customer. Storage charges may be varied from time to time and are subject to increase and it is therefore advisable to check with us for our prevailing charges.
Where Myrak’s equipment is hired such hire is governed under the model conditions of the Construction Plant Association (CPA).
All risk in the goods shall pass to the customer when the goods leave Myrak’s premises. The customer is advised to insure the goods before they leave Myrak’s depot, as no claims for loss or damage will be entertained. Neither will claims for any injuries or accidents caused by the equipment.
While Myrak are happy to assist with shipping and negotiate keen rates for our customers, we are not shippers and customers are advised to satisfy themselves as to the correct procedures and requirements for shipping. Myrak is not liable for the default of carriers for late shipment or any other problems with shipping companies, shipping lines, bills of lading, duties, damages in transit or port or any claim whatsoever due to shipping overseas or carriage across international borders. Customers are advised to insure their goods prior to departure from our premises. If we do arrange shipping Myrak’s policy is to charge what we are charged plus a small administration fee, and for any extra bills of lading delivery charges.
Equipment inspection for valuation of duty is a requirement of some overseas countries. While Myrak will provide reasonable assistance in the formalities it is the customers entire responsibility to satisfy itself as to the specific requirements of the country to which goods are shipped. Myrak does not accept any responsibility whatsoever for delays or expenses incurred or duty payable. Customers are advised to check with the relevant country’s customs or embassy authorities for full details of all formalities. Myrak will make a small charge for administration and any other expenses incurred in the inspections procedure.
Customers or their nominated professional body are allowed unlimited time and access to make whatever inspections and tests the see fit to satisfy themselves as to the condition and suitability of the goods during Myrak Ltd’s usual trading hours at the expense of the customer. Customers attention is drawn to the requirements of the Health & Safety at Work Act. The customer and their agents shall take all reasonable care during inspections to prevent damage or injury to Myrak’s staff, property or other customers and visitors and will indemnify Myrak against any claims arising from their or their agents inspection of the equipment. Customers and its agents are on Myrak’s Ltd premises at their own risk and should take reasonable steps to ensure their own safety and will have no claim against Myrak in the event that the customer or its agent suffers any loss or damage as a result of the customer or the agent failing to take reasonable care.
A construction plant and equipment site is not suitable for children and unless supervised and confined to the main office, children are prohibited from entering Myrak’s premises.
Myrak may terminate this contract if you fail to pay the price of the goods or unreasonably delay payment; or you become insolvent or bankrupt or a receiver/administrator is appointed over all or part of your assets; or you enter an agreement with a third party where Myrak has reason to believe they will be detrimentally affected; or you are guilty of a breach of any other term of this contract. If this contract is terminated by Myrak it will not affect our rights to recover any money you owe us under the contract or damages. If we terminate the contract such termination will have immediate effect and we will repossess our goods from you.
19.1 Any notice to be given under this contract shall be either delivered personally or sent by first class recorded delivery post (airmail if overseas). The address for service of each party is (in the case of a company) its registered office and (in the case of an individual) his address stated in the contract or any other address for service previously notified to the other party. A notice is deemed to have been served as follows: 19.1.1 If personally delivered, at the time of delivery; 19.1.2 If posted, at the expiration of 48 hours or (in the case of airmail) 7 days after the envelope containing it is delivered into the custody of the postal authorities. In proving service it is sufficient to prove that personal delivery was made, or that the envelope containing the notice was properly addressed and delivered into the custody office of the postal authority as a prepaid first class recorded delivery or airmail letter (as appropriate)
20.1 No waiver by Myrak of any breach of the contract by the customer shall be considered as a waiver of any subsequent breach of the same or any other provision. 20.2 If any provision of this contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this contract and the remainder of the provision in question shall not be effected. 20.3 The contract shall be governed by the laws of England, and the customer agrees to submit to the non-exclusive jurisdiction of the English courts.
Myrak Ltd 2015