In these conditions.
1.1 “The Buyer” means the person who agrees to purchase the Products from the Seller subject to these conditions whose details may be set out overleaf:
1.2 “These Conditions” means the terms and conditions of sale set out in this document:
1.3 “The Contract” means the agreement between the Seller and the Buyer for the sale and purchase of the Products:
1.4 “The delivery Address” means the address for delivery of the product which shall be the Buyers principal place of business unless specified overleaf;
1.5 “The Estimated delivery date” means the date on which the Seller estimates that the Products will be delivered may be set out overleaf;
1.6 “The Products” means the goods which the Seller is to supply to the Buyer in accordance with these conditions and which may be listed overleaf; and
1.7 “The Seller “ means Heamar Company Limited whose principle place of business is at Beresford House, Foundry Bank, Congleton, Cheshire, CW12 1EE
2. BASIS OF SALE
2.1 These conditions apply to all Contracts for the sale of goods entered into by the Seller. By placing an order with the Seller or accepting the Sellers quotation, the Buyer agrees to deal with the Seller on these conditions to the exclusion of all other terms, conditions, warranties or representations with the exception of any terms specified in writing overleaf.
2.2 No variation to these conditions shall be binding unless made in writing specifying both which clause is to be varied and full details of such variation and signed on behalf of each of the Buyer and the Seller
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Products 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 representation which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyers own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 A typographical, clerical or other error or omission in any literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without liability on the part of the Seller.
3. SALE AND PURCHASE
3.1 The Buyer agrees to purchase the Products from the Seller and the Seller agrees to sell the Products to the Buyer.
3.2 The Buyer shall not be entitled to cancel in whole or in part any order which the Seller has accepted or any quotation of the Seller which the Buyer has accepted in either case whether orally or in writing.
3.3 The Seller reserves the right to make any changes in the specifications of the Products which are required to confirm with any applicable safety or other requirements or which do not materially affect their quality or performance.
4.1 The Seller shall use its reasonable efforts to deliver the Products to the Buyer at the delivery address on or around the estimated delivery date, however if there is a delay in delivery the seller shall not be liable for damages in accordance with Condition 18 .
4.2 The Seller shall be entitled to deliver the Products in instalments in which case each instalment shall be treated as an entirely separate Contract and any default or breach by the Seller in respect of any such instalment shall not entitle the Buyer to cancel any other instalment or treat the Contract as a whole as repudiated.
4.3 If the Products are damaged on delivery or less than the correct amount of the Products is delivered, then unless the Buyer notifies the Seller (otherwise than by a note on the delivery note) within three days of delivery, no claim against the Seller may be made in respect of damage to or short delivery of such Products.
4.4 If the Products have not been delivered despite receipt by the Buyer of the invoice from the Seller relating to them, then unless the Buyer notifies the Seller within seven days after the date of such invoice, no claim against the Seller may be made in respect of non-delivery of those Products.
4.5 The Buyer shall be deemed to accept the Products on delivery notwithstanding any late delivery by the Seller.
4.6 If the Buyer fails to take delivery of the Products or fails to give the Seller adequate delivery instructions before the estimated delivery date, then, without prejudice to any other right or remedy available to the Seller, the Seller may:
a) Store the Products until actual delivery is made and charge the Buyer for the costs (including insurance) of storage; and/or
b) Sell the Products at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract and in either case shall be entitled to charge interest (both before and after judgement) on the price payable for the Products under the Contract 4% over the base rate from time to time of Nat West Plc from the estimated delivery date.
4.7 The Buyer shall not be entitled to return to the Seller any Products which the Seller has or has had manufactured or sourced specifically to comply with an order placed by the Buyer under any circumstances other than pursuant to the provision of clause 6. The Seller shall not be obliged to accept the return of any other Products unless it has given its permission to the Buyer prior to such return and the Products so returned are accompanied by a note of the reference number given to the Buyer by the Seller in respect of such product. The Seller shall refund the price paid by the Buyer in respect of such Products, less a handling charge of the greater of £25.00 and 25% of the price paid in respect of such Products.
5 . PRICES AND PAYMENT
5.1 The price of the Products shall be the price listed in the Sellers published price list current at the date of the Contract less the discount specified by the Seller from time to time
5.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to the Seller which is due to any factor beyond its control, any change in delivery dates, quantities or specifications for the Products which is requested by the Buyer or any delay caused by any instruction of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.3 Unless otherwise stated overleaf, all prices include packaging cost, but the Buyer shall be liable to pay the Sellers charges for transport and insurance.
5.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5.5 The Seller shall be entitled to invoice the Buyer for all amount due under the Contract on or any time after delivery of the Products unless the Products are to be collected by the Buyer or the Buyer wrongly fails to take delivery of them, in which case the Seller shall be entitled to invoice the Buyer at any time after the Seller has notified the Buyer that the Products are ready for collection or (as the case may be) the Seller has tendered delivery of the Products.
5.6 The Buyer shall make payment to the Seller in respect of all invoices in full and without deduction or set off (whether in relation to such invoice or otherwise) on or before 30 days after the invoice was issued. Time of payment shall be of the essence.
5.7 All payments shall be applied to invoices and to Products listed in such invoices in the order determined in its discretion by the Seller.
5.8 Prior authorisation is required for payment in currency other than pound sterling when invoice is in pound sterling
5.9 If full payment is not received by the Seller by the due date then without prejudice to its rights, either at common law or under clause8 of these conditions, the Seller shall be entitled:
a) To sue for the entire price; and or
b) To charge interest (both before and after any judgement) at the rate of 4% over the base rate from time to time of Nat West Plc on the outstanding balance; and /or
c) To require the immediate return to the Seller of all goods agreed to be sold by the Seller to the Buyer in which the property has not passed to the Buyer in accordance with the provision of clause 8 below and the Buyer hereby agrees to reimburse to the Seller upon demand the Sellers costs or expenses in recovering such goods.
6 WARRANTY AND LIABILITY
6.1 The Seller warrants that the Products will be free from defects in material and workmanship for the period of 12 months from the date of delivery PROVIDED THAT:
a) The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by the Buyer or persons using the Products, abnormal working conditions, failure to follow the Sellers instructions (whether oral or in writing), or misuse or alteration or repair of the Products without the Sellers approval;
b) The Seller shall be under no liability if the total price of the Products has not been paid by the due date for payment;
c) any such defect in or failure to meet any such specification by the Products shall be notified to the Seller in writing as soon as reasonable possible after the Buyers discovers such defect or non-conformity; and
d) The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, ion respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to; the Seller and which the Seller hereby assigns to the Buyer so as it is able.
6.2 In the event of any valid claim under clause 6.1 above being made by the Buyer, the Seller shall be entitled to replace or repair the Products (or the part in question) free of charge or, at the Sellers sole discretion, refund to the Buyer the price of the Products (or a proportionate price of the price as appropriate) but the Seller shall have no further liability to the Buyer.
6.3 There are no warranties, conditions, guarantees or representations as to merchantability or fitness for a particular purpose of the Products or other warranties, conditions, guarantees or representations whether express or implied, oral or in writing, except as expressly stated in the Contract.
6.4 The Seller shall be liable for any death or personal injury arising from use or supply of the product to the extent that it results from the proven negligence of the Seller or its employees.
6.5 The Seller shall be liable to the Buyer for any direct physical damage other than death or personal injury to the extent that it results from the negligence of the Seller or its employees up to a maximum of £250,000.
6.6 Except pursuant to sub-clause 6.4 above, the Seller shall not in any event be liable for any indirect, special or consequential damages, however arising (including but not limited to loss of anticipated profits) in connection with or arising out of the furnishing, functioning or use of the Products and shall not be liable for any other damages except as provided in the Contract.
6.7 Except pursuant to sub-clause 6.4 and 6.5 above, in no event shall the Sellers liability in respect of any of the Products exceed the price paid for those Products.
6.8 Except pursuant to sub-clause 6.4 above, no action, regardless of form, arising out of the transactions under the Contract may be brought by the Buyer more than two years after the clause of action has accrued.
7. QUALITY OF THE GOODS TO BE SUPPLIED
7.1 The Seller warrants, represents, undertakes and guarantees that the Goods supplied under this Agreement will:
a) be free from defects (manifest or latent), in materials and workmanship;
b) conform with the specifications, the exact manufactures part numbers, drawings, descriptions given in quotations, estimates, brochures, sales, marketing and technical literature or material (in whatever format made available by the Seller or the manufacturer) supplied by, or on behalf of, the Seller or the manufacturer of the Goods;
c) be free from design defects
d) not be counterfeit
e) comply with the date code requirement for each line. Where no date line code is specified it must be no older than 2 years from the date of order, where applicable;
f) be new/unused, un-programmed and in the manufacturer’s original packaging; and
g) be suitable, in every aspect, for the purposes intended by the Buyer of which the Seller acknowledges that it has been notified
7.2 The Seller acknowledges and agrees that the approval by the Buyer of any designs provided by the Seller will not relieve the Seller of any of its obligations under this Clause.
a) The Seller further warrants, represents, undertakes and guarantees in relation to the Goods to:
i. notify the Buyer of any nonconforming products;
ii. notify the Buyer of any changes to the manufacturer’s specification and/or the agreed specification;
iii. keep full traceable records for the products supplied;
iv. give the Buyer and/or their representative including the Buyer’s customers and/or regulatory authorities the right of access to applicable areas of all facilities, at any level of the supply chain, involved in the supply of the Goods and to all applicable records; and
v. provide Certificate of Conformity, test reports and/or Airworthiness Certificate upon request
8. THIRD PARTY RIGHTS
8.1 The Seller shall at its expense defend any action against the Buyer and pay all damages and cost awarded against the Buyer (except to the extent that the Buyer is entitled to recover such sums under any policy of insurance) based on a claim that any of the Products constitute an infringement of any patent or copyright or other intellectual property rights of the United Kingdom or misuse any confidential information belonging to any third party (“a Claim”) PROVIDED THAT;
a) The Seller shall be notified promptly in writing by the Buyer of any notice of a claim;
b) The Seller shall have sole control of the defence of any action on a claim and all negotiations for settlement or compromise;
c) The Buyer shall allow its name to be used in proceedings if necessary and provide all reasonable assistance in defending any action; and
d) The Buyer shall take all steps reasonably possible to mitigate or reduce any damages and costs, which be awarded against it as a result of a claim.
8.2 If a claim is successful or the Seller considers that it is likely to be successful, the Seller may, at its option or as part of a settlement or compromise, modify the Products so that they are non-infringing or terminate the Contract in so far as it applies to those Products subject to the claim, in which latter case the Seller shall refund to the Buyer the price paid for such Products less depreciation on a straight line basis over the life of the Products as determined by the Seller.
8.3 In no event shall the Seller have any liability under this clause with respect to any claim based on the use of the Products in combination with any other Products or equipment not supplied by the Seller.
8.4 This clause states the entire obligation and liability of the Seller with respect to infringement of intellectual property rights and misuse of confidential information
9. RISK AND TITLE
9.1 Risk of damage to or loss of the Products shall pass to the Buyer on delivery
9.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these conditions, the property in the Products shall not pass to the Buyer and shall be retained by the Seller until the Seller has received, in cash or cleared funds payment, in full of the price of the Products and of all sums due in connection with the supply of all goods to the Buyer by the Seller at any time.
9.3 The Buyer shall hold all goods owned by the Seller as the Sellers fiduciary agent and bailee, shall store them in such a way that they are clearly identifiable as the Sellers property, shall maintain record of such goods, identifying them as the Sellers property and shall keep them properly stored, protected and insured. The Buyer shall be entitled to resell or use such goods in the ordinary course of its business but shall account to the Seller in respect of the proceeds of sale or otherwise of such goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any other monies or property of the Buyer and third parties and ,in the case of tangible proceeds, property identified, stored, protected and insured. The Buyer shall maintain records of the persons to whom it sells or disposes of such goods and of the payment made by such persons for such goods and will allow the Seller to inspect these records and the goods themselves on request. The Seller shall be entitled to trace the proceeds of sale or otherwise of such goods.
9.4 For the avoidance of doubt, the Products and all other goods supplied to the Buyer by the Seller which are in the Buyers possession shall be presumed to belong to the Seller unless the Buyer can prove otherwise.
9.5 Until such time as the property in any goods owned by the Seller passes to the Buyer, the Seller shall be entitled at any time to enquire the Buyer to deliver up such foods to the Seller and if the Buyer fails to so do forthwith, to enter upon any premises of the Buyer or any third party where such goods are stored and repossess them. The Buyer shall procure that any third party which holds such goods shall permit the Seller to take possession of them. The Seller shall be entitled to use or dispose of such goods as it wishes. Unless the Seller expressly elects otherwise any Contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by the Seller of any of its rights under this clause.
9.6 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 monies owning by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10. LAWS AND REGULATIONS
The Buyer shall comply with all laws and regulations relating to the ownership and use of the Products including health and safety requirements.
11.1 The Seller shall be entitled to terminate the Contract forthwith by notice in writing to the Buyer if the Buyer:
a) Commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of the breach requiring remedy of the same; or
b) (being a company) is unable to pay its debts within the meaning of s.123 of the insolvency Act 1986 or shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of ) its creditors or a receiver, administrative receiver or similar officer is appointed over all or a substantial part of the undertaking or assets of the Buyer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Buyer (whether by the presentation of a winding up petition or otherwise) or for the making of an administration order (the than for the purposes of reconstruction or amalgamation); or
c) ( being an individual) is unable to pay his debts within the meaning of s.268 of the Insolvency Act 1986 or a petition is presented for his bankruptcy or the Buyer makes an arrangement or compromise for the benefit of his creditors whether pursuant to the provision of Part VIII Insolvency Act 1986 or otherwise; or
d) (being a partnership) is unable to pay its debts or a petition is presented for the winding up of the Buyer under the provision of the Insolvent Partnership Order 1994 whether or not involving individual insolvency proceedings against the Buyer’s partners and presented by creditors or by the partners themselves or such a petition is presented in conjunction with bankruptcy or individual insolvency or petitions against any partner of if the Buyer enters into any composition, scheme of arrangement or voluntary arrangement including the business and assets of the Buyer or the share of any partner or in the event of any action for a partnership
account and/or a winding up of or a dissolution of the Buyer under the Partnership Act 1890 or if any of the states of affairs or events described in clause 10.1.3 exist or occur to or in relation to any of the partners or if the Buyer is dissolved; or
e) Ceases or threatens to cease to carry on business; or the Seller reasonably apprehends that any such events is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.2 In the event of termination by the Seller pursuant to clause 10.1 above 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 it without any liability to the Buyer and, if the Products have already been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the Seller shall be entitled to charge interest (both before and after any judgement) at the rate of 4% over the base rate from time to time of Nat West Plc from the time of such cancellation or suspension until the Seller receives payment.
12.1 The remedies available to the Seller under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Buyer
13.1 The failure or delay of the Seller to enforce or to exercise, at any time or for any period of time, any term of or any right arising pursuant to the Contract does not constitute and shall be construed as a waiver of such term or right and shall in no way affect the Seller’s right later to enforce or exercise it.
14.1 The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way effect the remaining terms or right which shall be construed as if such invalid or unenforceable term or right did not exist.
15.1 Any notice required or permitted to be given under the Contract shall be delivered by hand or sent by recorded delivery mail to the Seller at its address set out above or to the Buyer at its last address known to the Seller and shall be deemed to have been given when actually received or, if recorded delivery mail is marked “gone away” or to like effect, on return of such recorded delivery mail.
16.1 The Contract is personal to the Buyer and the Buyer may not assign, transfer, sub-Contract or otherwise part with the Contract or any right or obligation under it without the Seller’s prior written consent.
17. FORCE MAJEURE
17.1 The Seller shall have no liability to the Buyer if its performance of its obligations under the Contract is prevented or hindered due to any circumstances outside its control.
18.1 Clause headings are purely for ease of reference and do not form part of or effect the interpretation of the Contract.
19.1 The seller shall not be liable for all injuries, damages, losses, liabilities, actions, claims, damages awards, costs and expenses (including legal costs and expenses), whether or not they relate in part or in whole to consequential losses or damage, of whatever nature suffered by the buyer or third parties
20.1 The Buyer shall upon demand by the Seller indemnify the Seller in full and against all injuries, damage, losses, liabilities, actions, claims, damage awards, costs and expenses (including legal costs and expenses), whether or not they relate in part or in whole to consequential losses or damage, of whatever nature suffered.
21. LAW AND JURISDICTION
21.1 The construction, validity and performance of the Contract is governed by the laws of England and the parties accept the jurisdiction of the English Courts.