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Credit Account - Terms & Conditions

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CONTENTS


Clause

1. Interpretation ................................................................................................................. 2

2. Basis of contract ............................................................................................................ 2

3. Orders and specification ............................................................................................ 3

4. Delivery.............................................................................................................................. 4

5. Warranty ........................................................................................................................... 5

6. Title and risk ................................................................................................................... 6

7. Price and payment ....................................................................................................... 7

8. Limitation of liability ................................................................................................... 8

9. Termination .................................................................................................................... 8

10. Force majeure.............................................................................................................. 9

11. General .......................................................................................................................... 9



The Buyer's attention is drawn in particular to the provisions of clause 8.


1.

INTERPRETATION


1.1

Definitions:


Business Day:

a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.


Business Hours:

the period from 8.00 am to 5.00 pm on any Business Day.


Conditions:

the terms and conditions set out in this document as amended from time to time in accordance with clause 11.5.


Contract:

the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.


Buyer:

the person or firm who purchases the Goods from the Supplier.


Collection Location:

has the meaning given in clause 4.3.


Delivery Location:

has the meaning given in clause 4.2.1.


Force Majeure Event:

an event, circumstance or cause beyond a party's reasonable control.


Goods:

the goods (or any part of them) set out in the Order.


Order:

the Buyer's order for the Goods, as set out in the Buyer's written acceptance of the Seller's quotation or in the Buyer's purchase order form, as the case may be.


Seller:

Howcroft Group Limited (and any other trading names of it) (registered in England and Wales with company number 06055780), and its authorised representatives for the time being.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Buyer and the Seller.


1.2

Interpretation:


1.2.1

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).


1.2.2

A reference to a party includes its personal representatives, successors and permitted assigns.


1.2.3

A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.


1.2.4

Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.


1.2.5

A reference to writing or written excludes fax but not email.


2.

BASIS OF CONTRACT


2.1

These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.


2.2

The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification, submitted by the Buyer, are complete and accurate, and are submitted within reasonable time to enable the Seller to perform its obligations under the Contract in accordance with these Conditions.


2.3

The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence.


2.4

No variation to these Conditions in respect of any Order shall be binding unless agreed in writing between the Buyer and the Seller.


2.5

The Seller’s employees or agents are not authorised to make any representation 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 waives any claim for breach of, any such representations which are not so confirmed.


2.6

The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.


2.7

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


2.8

A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 28 Business Days from its date of issue unless otherwise stated, after which time, the Seller may alter the quotation without giving notice to the Buyer.


3.

ORDERS AND SPECIFICATION


3.1

No Order submitted by the Buyer shall be deemed accepted by the Seller unless confirmed in writing by the Seller.


3.2

The Goods are described in the Seller's catalogue the Specification.


3.3

The quantity and Specification of the Goods shall be those set out in the Order.


3.4

Any samples, drawings or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.


3.5

No Order which has been accepted by the Seller may be cancelled or deferred 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 losses (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 the cancellation or deferral.


3.6

To the extent that the Goods are to be manufactured, by a party other than the Seller, in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller's use of the Specification. This clause 3.6 shall survive termination of the Contract.


3.7

The Seller reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Seller shall notify the Buyer in any such event.


4.

DELIVERY


4.1

The Buyer may collect, or the Seller may organise delivery of, the Goods. The Buyer must state their preference in this regard at the time of placing the Order with the Seller.


4.2

Where delivery is specified in the Order:


4.2.1

the Seller may employ the services of a third-party subcontractor to fulfil their obligations under the Contract pursuant to these Conditions. The Buyer shall state a location for where the Goods are to be delivered in the Order, or agree with the Seller an alternative location for delivery (Delivery Location), any time after being notified by the Seller that the Goods are ready for delivery;


4.2.2

the Seller shall have no liability for any failure or delay in delivering an Order to the Buyer to the extent that such failure or delay is caused by the actions or omissions of the third-party subcontractor;


4.2.3

delivery is completed on the completion of unloading the Goods at the Delivery Location.


4.3

Where collection is specified in the Order:


4.3.1

the Buyer shall collect the Goods from the Seller's premises at Unit 9 A&B, Brookfields Way, Manvers, Rotherham, South Yorkshire, S63 5DL or such other location as may be advised by the Seller prior to delivery (Collection Location), any time after being notified by the Seller that the Goods are ready for collection;


4.3.2

delivery is completed on the completion of loading of the Goods at the Collection Location.


4.4

Any advice or recommendation given by the Seller as to the storage of the Goods is acted upon entirely at the Buyer’s own risk, and accordingly, the Seller shall not be liable for any such advice or recommendation.


4.5

Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.


4.6

If the Seller fails to organise delivery of the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.


4.7

If the Buyer fails to take or accept delivery of the Goods within five Business Days of delivery being attempted or the Seller notifying the Buyer that the Goods are ready for collection, then, except where such failure or delay is caused by a Force Majeure Event or the Seller's failure to comply with its obligations under the Contract in respect of the Goods:


4.7.1

delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which delivery was attempted or the Seller notified the Buyer that the Goods were ready for collection (Deemed Delivery); and


4.7.2

the Seller shall store the Goods, for a period of ten business days following the date of Deemed Delivery, until actual delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).


4.8

If ten Business Days after the date of Deemed Delivery have elapsed, and the Buyer has not taken or accepted actual delivery of the Goods, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.


4.9

If the Seller delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, the Seller shall make a pro rata adjustment to the invoice for the Goods.


4.10

The Seller may deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.


5.

WARRANTY


5.1

The Seller warrants that on delivery, the Goods shall:


5.1.1

conform in all material respects with the Specification; and


5.1.2

be free from material defects in design, material and workmanship.


5.2

Subject to clause 5.3, if:


5.2.1

the Buyer gives notice in writing to the Seller within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;


5.2.2

the Seller is given a reasonable opportunity of examining such Goods; and


5.2.3

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,

the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. In this event, the Seller shall have no further liability to the Buyer in respect of the Goods.


5.3

The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:


5.3.1

the Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2;


5.3.2

the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;


5.3.3

the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;


5.3.4

the Buyer alters or repairs such Goods without the written consent of the Seller;


5.3.5

the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or


5.3.6

the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.


5.4

Except as provided in this clause Error! Reference source not found., the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.


5.5

Where the Goods have been manufactured by a person other than the Seller, the warranty provided in clause 5.1 shall not apply and rather, the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.


5.6

The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.


5.7

These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.


6.

TITLE AND RISK


6.1

The risk in the Goods shall pass to the Buyer on completion of delivery.


6.2

Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods.


6.3

Until title to the Goods has passed to the Buyer, the Buyer shall:


6.3.1

store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;


6.3.2

not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;


6.3.3

maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;


6.3.4

notify the Seller immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and


6.3.5

give the Seller such information as the Seller may reasonably require from time to time relating to:


6.3.5.1

the Goods; and


6.3.5.2

the ongoing financial position of the Buyer.


6.4

Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:


6.4.1

it does so as principal and not as the Seller’s agent; and


6.4.2

title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Customer occurs.


6.5

At any time before title to the Goods passes to the Buyer, the Seller may:

require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.


6.6

Until such time as title to the Goods has passed to the Buyer, 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.


7.

PRICE AND PAYMENT


7.1

The price of the Goods shall be the price set out in the Order, and supersedes all prior discussions relating to the price between the Seller and the Buyer. If no price is quoted, the price shall be the price set out in the Seller's published price list in force as at the date of delivery. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply.


7.2

The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:


7.2.1

any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);


7.2.2

any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or


7.2.3

any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.


7.3

The price of the Goods:


7.3.1

excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice;


7.3.2

excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer; and


7.3.3

excludes, where applicable, the cost of pallets and/or returnable containers used in delivering the Goods, which shall be initially invoiced to the Buyer and will later be subject to a full credit from the Seller on the basis that the pallets and/or returnable containers are returned undamaged to the Seller before payment for the Goods becomes due in accordance with clause 7.5.


7.4

The Seller may invoice the Buyer for the Goods on or at any time after the completion of delivery.


7.5

The Buyer shall pay each invoice submitted by the Seller:


7.5.1

within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Seller and confirmed in writing to the Buyer; and


7.5.2

in full and in cleared funds to a bank account nominated in writing by the Seller, and

time for payment shall be of the essence of the Contract.


7.6

Receipts in respect of payment of the invoice shall only be issued by the Seller upon the request of the Buyer.


7.7

If the Buyer fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller's remedies under clause 9, the Seller may:


7.7.1

suspend any further delivery of Goods which are due to the Buyer; and/or


7.7.2

charge the Buyer interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at either 4% (where the Buyer is a consumer) or 8% (where the Buyer is a business) a year above the Bank of England's base rate from time to time.


7.8

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).


8.

LIMITATION OF LIABILITY


8.1

The Seller has obtained insurance cover in respect of certain aspect of its own legal liability for individual claims not exceeding £5 million per claim. The limits and exclusions in this clause reflect the insurance cover the Seller has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess liability.


8.2

References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.


8.3

Nothing in the Contract limits any liability which cannot legally be limited, including liability for:


8.3.1

death or personal injury caused by negligence;


8.3.2

fraud or fraudulent misrepresentation;


8.3.3

breach of the terms implied by section 12 of the Sale of Goods Act 1979; or


8.3.4

defective products under the Consumer Protection Act 1987.


8.4

Subject to clause 8.3, the Seller's total liability to the Buyer shall not exceed the price for the Goods as stated in the Order.


8.5

Subject to clause 8.3, the following types of loss are wholly excluded:


8.5.1

loss of profits;


8.5.2

loss of sales or business;


8.5.3

loss of agreements or contracts;


8.5.4

loss of anticipated savings;


8.5.5

loss of use or corruption of software, data or information;


8.5.6

loss of or damage to goodwill; and


8.5.7

indirect or consequential loss.


8.6

This clause 8 shall survive termination of the Contract.


9.

TERMINATION


9.1

Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:


9.1.1

the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within ten days of that party being notified in writing to do so;


9.1.2

the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken

in another jurisdiction, in connection with any analogous procedure in the relevant

jurisdiction];


9.1.3

the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or


9.1.4

the Buyer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.


9.2

Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.


9.3

If the Buyer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, and the Goods have been delivered by the Seller but not yet paid for by the Buyer, the Seller is entitled to demand immediate payment of the sums due, and charge interest in respect thereof in accordance with clause 7.7.2.


9.4

Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.


9.5

On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.


9.6

Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.


9.7

Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.


10.

FORCE MAJEURE

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six weeks, the party not affected may terminate the Contract by giving five Business Days' written notice to the affected party.


11.

GENERAL


11.1

Assignment and other dealings.


11.1.1

The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.


11.1.2

The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.


11.2

Confidentiality.


11.2.1

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, Buyers, clients or Sellers of the other party, except as permitted by clause 11.2.2.


11.2.2

Each party may disclose the other party's confidential information:


11.2.2.1

to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.2; and


11.2.2.2

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.


11.2.3

Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.


11.3

Data protection.


11.3.1

The Seller may collect personal information from the Buyer and its authorised representatives pursuant to the Contract. For information on how the Seller manages personal data, please ask to see our full Privacy Policy.


11.4

Entire agreement.


11.4.1

The Contract constitutes the entire agreement between the parties.


11.4.2

Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.


11.5

Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).


11.6

Waiver.


11.6.1

Except as set out in clause2.6, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.


11.6.2

A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.


11.7

Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.


11.8

Notices.


11.8.1

Any notice given to a party under or in connection with the Contract shall be in writing and shall be:


11.8.1.1

delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or


11.8.1.2

sent by email to the following addresses (or an address substituted in writing by the party to be served):

Seller: sales@howcroft.co.uk.

Buyer: the email address stipulated on the purchase order form.


11.8.2

Any notice shall be deemed to have been received:


11.8.2.1

if delivered by hand, at the time the notice is left at the proper address;


11.8.2.2

if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or


11.8.2.3

if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.


11.8.3

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.


11.9

Third party rights.

The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.


11.10

Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.


11.11

Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.