1 Application of Terms and Conditions
1.1 The Seller shall sell, and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller [or the Contract attached hereto as Schedule 1]; and
1.2 These Terms and Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Seller, or any such order is made or purported to be made, by the Buyer.
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
|“Business Day”||means any day other than a Saturday, Sunday or bank holiday;|
|“Buyer”||means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;|
|“Contract”||means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions [and is attached hereto as Schedule 1];|
|“Contract Price”||means the price stated in the Contract payable for the Goods;|
|“Delivery Date”||means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by the Seller, as evidenced in the Contract;|
|“Goods”||means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract;|
|“Month”||means a calendar month; and|
|“Seller”||Means Hucknall Sheet Metal Engineering Limited, a company registered in England under01351 423 of Occupation Road, Bulwell, Nottingham NG6 8RD and includes all employees and agents of Hucknall Sheet Metal Engineering Limited.|
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.2.4 a Schedule is a schedule to these Terms and Conditions; and
2.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3 Basis of Sale
3.1 The Seller’s employees 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, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
3.3 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods or has accepted an order placed by the Buyer by whichever is the earlier of:
3.3.1 the Seller’s written acceptance;
3.3.2 delivery of the Goods; or
3.3.3 the Seller’s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions 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.
4. Orders and Specifications
4.1 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.
4.2 The specification for the Goods shall be that set out in the Seller’s sales documentation unless varied expressly in the Buyer’s order (if such variation(s) is/are accepted by the Seller). The Goods will only be supplied in the minimum units thereof stated in the Seller’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
4.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the 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 such cancellation.
5.1 The Contract Price of the Goods shall be the price listed in the Seller’s quotation current at the date of acceptance of the Buyer’s order or such other price as may be agreed in writing by the Seller and the Buyer.
5.2 Where the Seller has quoted a price for the Goods other than in accordance with the Seller’s published price list the price quoted shall be valid for 30 days only or such lesser time as the Seller may specify.
5.3 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 (including, 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 are 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.
5.4 [The Seller may allow the Buyer quantity discounts subject to and in accordance with the conditions set out in the Seller’s published price list for the Goods current at the date of acceptance of the Buyer’s order.]
5.5 [Any settlement discount specified by the Seller in the Contract will be allowed by the Seller to the Buyer in respect of Goods for which payment is received by the Seller on or before the due date and otherwise in accordance with the payment terms set out in these Terms and Conditions and provided that no other amounts owing by the Buyer to the Seller are overdue and unpaid.]
5.6 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are inclusive of the Seller’s charges for packaging and transport.
5.7 The Contract Price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract 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 Contract 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.
6.2 The Buyer shall pay the Contract Price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction, credit or set off) within 30 days from end of month in which goods are invoiced or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.
6.4 The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 6.2 of these Terms and Conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
7.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place in the United Kingdom specified in the Buyer’s order and/or the Seller’s acceptance and/or the Contract as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, 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.
7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1, risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
8.1 If the Seller fails to deliver the Goods or any part thereof on the Delivery Date other than for reasons outside the Seller’s reasonable control or the Buyer’s or its carrier’s fault:
8.1.1 if the Seller delivers the Goods at any time thereafter the Seller shall have no liability in respect of such late delivery; or
8.1.2 if the Buyer gives written notice to the Seller within 7 Business Days after the Delivery Date and the Seller fails to deliver the Goods within 30 Business Days after receiving such notice the Buyer may cancel the order and 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 those not delivered over the price of the Goods not delivered.
9.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
9.2 Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined”.
9.3 The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the provisions of this Clause 9 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to the Seller within 7 Business Days of delivery detailing the alleged damage or shortage.
9.4 In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.
9.5 Subject to sub-Clauses 9.3 and 9.4, the Seller shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Risk and Retention of Title
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer at:
10.1.1 in the case of Goods to be delivered at the Seller’s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
10.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, 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.
10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of 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.
10.3 [Sub-Clause 10.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods and any other goods supplied by the Seller and the Buyer has repaid all moneys owed to the Seller, regardless of how such indebtedness arose.]
10.4 Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
10.5 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 money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10.6 The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.4.
10.7 The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
10.7.1 the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
10.7.2 the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
10.7.3 the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
10.7.4 the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
11.1 The Seller may assign the Contract or any part of it to any person, firm or company without the prior consent of the Buyer.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
12. Defective Goods
12.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within 7 Business Days of such delivery, the Seller shall at its option:
12.1.1 replace the defective Goods within 30 Business Days of receiving the Buyer’s notice; or
12.1.2 refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice given by the Buyer as set out above.
12.2 No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller’s sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods, but the Seller shall have no further liability to the Buyer.
12.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Seller’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
12.4 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.5 Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Terms and Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
12.6 The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition.
13. Buyer’s Default
13.1 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
13.1.1 cancel the order or suspend any further deliveries to the Buyer;
13.1.2 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
13.1.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8% per annum 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).
13.2 This condition applies if:
13.2.1 the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
13.2.2 the Buyer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
13.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
13.2.4 the Buyer ceases, or threatens to cease, to carry on business; or
13.2.5 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.
13.3 If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to 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.
14. Limitation of Liability
14.1 Subject to the provisions of Clauses 7, 8 and 12 the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
14.1.1 any breach of these Terms and Conditions or the Contract;
14.1.2 any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Terms and Conditions excludes or limits the liability of the Seller:
14.3.1 for death or personal injury caused by the Seller’s negligence;
14.3.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
14.3.3 for fraud or fraudulent misrepresentation.
14.4 Subject to sub-Clauses 14.2 and 14.3:
14.4.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
14.4.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15 Confidentiality, Publications and Endorsements
15.1 The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller’s prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer’s default.
15.2 The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor.
15.3 The Buyer will use its reasonable endeavours to ensure compliance with this Clause 15 by its employees, servants and agents.
15.4 The provisions of this Clause 15 shall survive the termination of the Contract.
16.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
16.2 Notices shall be deemed to have been duly given:
16.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
16.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
16.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
16.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
16.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
17. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
20. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. Law and Jurisdiction
21.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
12.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
The Buyer hereby orders and the supplier, by accepting the purchase order, agrees that it will supply the Goods specified overleaf upon and subject to these conditions which shall govern the Contract to the exclusion of any other terms and conditions. Any reference overleaf to the supplier’s quotation, specification, price list or like document shall be solely for the purpose of describing the Goods to be supplied and no terms and conditions endorsed upon, delivered with or referred to in such apply to the Contract.
2.1 In these Terms and Conditions: –
|“Business Day”||means any day other than a Saturday, Sunday or bank holiday;|
|“the Buyer”||means Hucknall Sheet Metal Engineering Limited (HSME) a company registered in United Kingdom under number 01351423 whose registered office is at Occupation Road, Bulwell, Nottingham NG6 8RD|
|“these Conditions”||means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;|
|“the Contract”||means the contract for the sale and purchase of the Goods constituted by the Seller’s acceptance of the Order in accordance with these Conditions;|
|“the Delivery Address”||means the address stated on the Order for delivery of the Goods;|
|“the Goods”||means the goods (including any instalment of the goods or any parts for them) described in the Order;|
|“the Order”||means the Buyer’s purchase order to which these Conditions are annexed;|
|“the Price”||means the price of the Goods;|
|“the Seller”||means the person so described in the Order;|
|“Specification”||includes any plans, drawings, data or other information relating to the Goods; and|
|“Writing”||includes facsimile, transmission, electronic mail and comparable means of communication.|
2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statue or provision as amended, re-enacted or extended at the relevant time.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no affect their interpretation.
3 Basis of Purchase
3.1 The Order constitutes an offer by the Buyer to purchase the Goods subject to these Conditions.
3.2 The Supplier shall accept the Order placed by the Buyer and a binding contract for the supply of the Goods subject to these conditions, shall exist by whichever is the earlier of: –
3.2.1 the Supplier’s acceptance of the Order, in writing or orally, subject to these conditions; or
3.2.2 Delivery of the Goods
3.3 Any typographical clerical or other accidental error or omission in the Order placed by the Buyer or in any drawings specifications, instructions, tools or other material supplied by the Buyer, shall be subject to correction without any liability on the part of the Buyer.
3.4 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
4.1 The quantity, quality and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.
4.2 Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.
4.3 The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
4.4 The Seller shall not unreasonably refuse to take any steps necessary to comply with any request by the Buyer to inspect or test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and to provide the Buyer with any facilities reasonably required by the Buyer for inspection or testing.
4.5 If as a result of inspection or testing the Buyer is not satisfied that the goods will comply in all respects with the Contract, and the Buyer so informs the Seller within seven days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.
4.6 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.
5.1 The Price of the Goods shall be as stated in the Order and, unless otherwise so stated, shall be: –
5.1.1 exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoices); and
5.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax.
5.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.
5.3 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.
6.1 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods, as the case may be, and each invoice shall quote the number of the Order.
6.2 Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods within 30 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods in question by the Buyer, but time for payment shall not be of the essence of the contract.
6.3 The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.
7.1 The Goods shall be delivered to the Delivery Address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours.
7.2 Where it is agreed in writing that the date of delivery of the Goods is to be specified by the Seller after the placing of the Order, the Seller shall give the Buyer reasonable notice in writing of the specified date.
7.3 The time of delivery of the Goods is of the essence of the Contract.
7.4 A packing note clearly quoting the number of the Order must accompany each delivery or consignment of the goods.
7.5 If the goods are to be delivered by instalments, the Contract will be treated as a single contract and not severable.
7.6 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery.
7.7 The Seller shall supply the Buyer in good time with any instructions or other information to enable the Buyer to accept delivery of the Goods.
7.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer
7.9 The Seller acknowledges that the Buyer has a legitimate commercial interest in the Goods being delivered on the due and that the Buyer should have an appropriate remedy if they are not so delivered. Accordingly, if the Goods are not delivered on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has agreed to pay any part of the price in advance of delivery) to claim from the Seller by way of liquidated damages for delay 10 per cent of the Price for every week’s delay, up to a maximum of 50 per cent of the price, without prejudice to claim any other remedy for any further delay in delivery once that maximum amount of liquidated damages has been reached
7.10 The Buyer shall not be deemed to have accepted the Goods until it has had 14 days to inspect them following delivery or collection as the case may be. The Buyer shall also have the right to reject the Goods as though they had not been accepted for 28 days after any latent defect in the Goods has become apparent.
8.1 Quality Systems and Approvals.
It is required that the supplier maintains a quality management system, should the Seller lose or have withdrawn by the relevant authority any of its quality systems approvals then the Buyer shall be informed at the earliest possible convenience.
Should the Seller undertake any changes in terms of product and / or process, changes of suppliers or changes of manufacturing facility location, then the Buyer shall be informed prior to the work scope being undertaken.
8.2 Counterfeit parts and training.
Counterfeit parts – All parts identified within this purchase order are subject to the Buyer counterfeit parts program.
Requirements of the Seller
The Seller shall not deliver any goods that are considered counterfeit, this is defined as a part that is a copy, imitation, or substitute part which represents, identified, or marked as genuine, and / or altered by source without legal right to do so. In addition, any suspect part identified by inspection or testing that may have been misrepresented by the Seller or manufacturer and therefore may meet the definition of counterfeit.
The Seller shall maintain a documented system (policy, procedures or other documented approach) for the detection and avoidance of counterfeit parts, to include the training of employees in awareness of their contribution to the product safety / conformity, ethical behaviour standards, and the requirement to report any non-conformity.
The Seller shall have in place processes to ensure traceability of product, flow down of counterfeit part prevention requirements, inspection and testing of parts, the quarantining and reporting of suspect counterfeit parts.
The Seller shall quarantine suspect counterfeit part pending resolution and will make them available for investigation.
Should the Seller become aware of a confirmed or suspect counterfeit part that may have been delivered to the Buyer, the Seller shall advise the Buyer within 48 hours of the discovery and the suggested actions that is required.
8.3 Sub-contract of works.
The Seller shall not sub-contract any of the contract described in this purchase order either as a whole or in part to other companies without the prior consent of Buyer.
8.4 Record retention.
The Seller is required to retain all records, ensuring records are legible and stored in a manner to ensure they are protected from damage or deterioration and will be made available to the Buyer upon request. As required by the Buyer’s customers records may have to be retained indefinitely for certain contracts, in all cases the Seller must inform the Buyer prior to disposal or destruction of records relating to this order to give opportunity for collection.
8.5 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavor to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
8.6 The Seller warrants that (subject to the other provisions of these conditions) upon delivery, [and for a period of 24 months from the date of delivery,] the Goods shall:
8.6.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
8.6.2 be reasonably fit for purpose; and
8.6.3 be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of the Seller.
8.6.4 Should any non-conformities be identified by the Seller this shall be notified to the Buyer within 48 hours of discovery to include any potential product already delivered.
8.7 The Seller shall not be liable for a breach of any of the warranties in condition 8.5 unless:
8.7.1 the Buyer gives written notice of the defect to the Seller, and, if the defect is as a result of damage in transit to the carrier, within 14 days of the time when the Buyer discovers the defect; and
8.7.2 the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost for the examination to take place there.
8.8 The Company shall not be liable for a breach of any of the warranties in condition 8.5 if:
8.8.1 the Buyer makes any further use of such Goods after giving such notice; or
8.8.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice.
8.9 Subject to condition 8.6 and condition 8.7, if any of the Goods do not conform with any of the warranties in condition 8.6 the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the part of such Goods which is defective to the Seller.
9. Inspection and Testing
9.1 The Buyer reserves the right to inspect the Goods and any materials before despatch, but such Inspection shall not imply acceptance. The Buyer shall be at liberty to reject any part or portion of the Goods and materials if the same are inferior or defective in quality, standard or description as specified in the Purchase Order. The Buyer shall have the right to return the rejected Goods at the Seller’s risk and expense and to purchase elsewhere and any expense incurred shall be paid by the Seller to the Buyer
9.2 The Buyer shall be entitled, at its discretion, to inspect the Gods and any work thereon, and to make any such tests as are prescribed in the Purchase Order, during manufacture and before delivery. The Seller shall afford the Buyer’s representative every facility for such purposes, including access to the Seller’s (or sub-contractor’s) works at all reasonable times. Any such test or inspection shall not in any way relieve the Seller from any of its obligations under the Contract.
9.3 The Seller shall afford the rights of access by the organisation, their customer, and regulatory authorities to the applicable areas of facilities and to applicable documentation, at any level of the supply chain.
9.4 Where the specification of the Goods specifies any performance criteria, the Seller is obliged to modify or replace the Goods at the Seller’s expense if they are shown to not meet such performance criteria when installed and commissioned. Should such modifications or replacement not provide the required performance within a reasonable period of time from notification to the Seller, the Buyer reserves the right to reject the Goods and return such Goods at the Seller’s risk and expense and to purchase elsewhere and any expense incurred shall be paid by the Seller to the Buyer.
10. Risk and Property
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.
10.2 The property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods has been agreed to be made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.
11.1 The Buyer may assign the Contract or any part of it to any person, firm or company.
11.2 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Buyer.
11.3 [The Buyer is a member of the group of companies whose holding company is HSM Group Investments Limited, and accordingly the Buyer may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Buyer.]
12.1 The Seller warrants to the Buyer that the Goods:-
12.1.1 will, both at the time of delivery and for a reasonable period of time thereafter, be of the best available design, quality, material and workmanship and conform in all respects with the Order and Specification supplied or advised by the Buyer to the Seller;
12.1.2 will be free from defects in design, material and workmanship
12.1.3 will correspond with any relevant Specification or sample; and
12.1.4 will comply with all statutory requirements and regulations relating to the sale of the Goods.
13.1 The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:-
13.1.1 breach of any warranty given by the Seller in relation to the Goods
13.1.2 any claim that the Goods infringe, or that their importation, use or resale, infringes, the patent, copyright trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
13.1.3 any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering or installing the Goods.
13.1.4 all claims by the customers of the Buyer (and their sub-buyers) arising out of any breach whatever by the Seller of this contract for sale.
14.1 Without prejudice to any other right or remedy which the Buyer may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Buyer:
14.1.1 to rescind the Order;
14.1.2 to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
14.1.3 at the Buyer’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
14.1.4 to refuse to accept any further deliveries of the Goods but without any liability to the Seller;
14.1.5 to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and
14.1.6 to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.
15.1 The Buyer shall be entitled to cancel the Contract in respect of all or part only of the Goods by giving notice in writing to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the Goods in respect of which the Buyer has exercised its right of cancellation, less the Buyer’s reasonable estimate of the Seller’s net saving of cost arising from cancellation.
15.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:-
15.2.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) 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 purpose of amalgamation or reconstruction; or
15.2.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
15.2.3 the Seller ceases or threatens to cease, to carry on business; or
15.2.4 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
16. Force Majeure
16.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 15.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
16.2 Sub-clause 15.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
16.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
16.4 If and when the period of such incapacity exceeds 6 months, then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
17.1.1 (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or
17.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Seller set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.
17.2 Communications shall be deemed to have been received:
17.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
17.2.2 if delivered by hand, on the day of delivery; or
17.2.3 if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
17.3 Communications addressed to the Buyer shall be marked for the attention of the Purchasing Manager .
17.4 Any notice required or permitted to be given by either party to the other under these Conditions 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 Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
20. Third Party Rights
A person who is not a party to the Contract shall have no rights under this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. Law and Jurisdiction
The Contract shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English and Welsh courts.