Contents
Clause
1......... Interpretation................................................................................................................ 1
2......... Basis
of contract........................................................................................................... 2
3......... Orders
and specification........................................................................................... 3
4......... Delivery............................................................................................................................ 3
5......... Warranty.......................................................................................................................... 6
6......... Title
and risk.................................................................................................................. 7
7......... Price
and payment...................................................................................................... 8
8......... Limitation
of liability.................................................................................................. 10
9......... Termination................................................................................................................... 11
10....... Force
majeure............................................................................................................. 12
11....... General.......................................................................................................................... 12
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 5, 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.