Harrison Thompson & Co Limited Terms and Conditions of sale and/or supply
PRELIMINARIES
These conditions are the only conditions to which all contracts for the sale or supply of goods and/or services (“the Goods”) by the Seller named above or overteaf (“the Seller”) to the Buyer named overteaf (“the Buyer”) is subject. Any other conditions proposed or stipulated by the Buyer in whatever form, written or oral, are hereby expressly waived and excluded. These conditions may not be varied except by the written consent of a director of the Seller.
PRICE AND PAYMENT
The Seller reserves the right by notice given at any time before delivery to vary the price of the Goods if, after the date of the contract, there is an increase in the Seller’s total cost of raw materials or production and/or distribution costs and overheads.
Normal terms of payment are strictly net within 30 days of delivery or (as the case may be)
installation unless otherwise stipulated in writing by the Seller.
If any payment is not made on or before the date due for payment, the Seller reserves the right to charge interest at 1.5 per cent per month from the date due for payment until the day payment is received by the Seller. Such interest shall run from day to day and shall accrue after as well as before any judgment and shall be compounded monthly on the amounts overdue until payment thereof.
DELIVERY
The Seller shall be deemed to have delivered the goods either when the Goods have been delivered and off-loaded by the Seller by whatever means to the premises of the Buyer or the Buyer’s nominee or (as the case may be) when goods are ready for collection at the Seller’s premises.
Although the Seller will endeavour to deliver on a particular date the lime for delivery shall not
(unless otherwise agreed in writing) be of the essence of the contract. The Seller shall not be liable for any loss or damage whether arising directly or indirectly from delay in delivery.
The Seller shall be entitled to deliver the Goods by instalments and to invoice the Buyer for
each such instalment. Each instalment will be considered a separate transaction and the failure of any one delivery shall not affect the due performance of the contract as a whole.
Should expedited delivery be agreed and necessitate overtime or additional costs, such costs
and overtime expenses shall be paid by the Buyer.
The Seller will endeavour to deliver the correct quantity of Goods ordered, but quotations are dependant upon stocks being available and the Seller shall not be liable for short delivery.
The Seller may, at its absolute discretion, make a reasonable storage charge for custody for all Goods standing to the credit of the Buyer, or to the Buyer’s order.
LOSS OR DAMAGE IN TRANSIT
The Seller shall not be responsible for damage to any of the Goods or loss of the goods or part thereof in transit unless the Buyer gives notice in writing or a claim to the Seller.
in the case of damage or partial loss or shortages, within 3 days after having received the Goods; and
in the case of loss, within 7 days of the date of the invoice.
The Buyer will be asked to sign a copy of the Seller’s delivery note as acknowledgement of receipt of goods. The Buyer should inspect the Goods carefully as an unqualified signature shall be deemed to signify the Buyer’s acceptance that the goods are in good condition.
The Seller’s liability in the case of loss or damage in transit shall be limited to repairing or replacing the damaged or, as the case may be, the lost Goods and the Seller shall not be under any other liability thereunder whatsoever. The Buyer must give the Seller’s representatives (if the Seller so requests) adequate opportunity to inspect the goods and remove samples for analysis.
SELLERS LIABILITY
The conditions and warranties implied by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982 (as appropriate) shall apply. To the extent permitted by law, all other conditions, warranties or obligations whether express or implied by statute, common law or otherwise are excluded and the remaining provisions of this condition shall apply in lieu thereof. The Seller shall not be liable for any indirect or consequential loss whatever and however arising.
If any of the Goods shall be found to be defective and such defects are reported by the Buyer in writing to the Seller in the case of apparent defects within 14 days of delivery and in the case of latent defects within 14 days of the date on which those defects could reasonably first have been identified, the Seller may, at its option, either repair or replace any of the Goods or re-execute any Services or make an equivalent quantity of the Goods available to the Buyer free of charge ex works or repay a corresponding proportion of the price to the Buyer but shall not be under any other liability.
The Seller shall be under no liability in respect of alleged defective Goods unless:-
the Buyer gives to the Seller written notice and details of the defect within the periods above mentioned;
the Buyer gives the Seller’s representative adequate opportunity to inspect the Goods and
remove samples for analysis;
the Buyer has used or dealt with the Goods property or where such defect is attributable to any act or default of a person other than the Seller unless the Buyer is a person who suffers damage within the meaning of Section 5 of the Consumer Protection Act 1987.
All warnings data sheets diagrams and other information as to the construction assembly use,
storage or disposal of the goods, made available to the Buyer before, at the time or after the time of supply of the goods to the Buyer shall be supplied by the Buyer to any person to whom the Buyer supplies the goods or any product in which the goods are incorporated and the Buyer shall impose a similar requirement on such person. The Buyer shall indemnify the Seller in full against all liabilities costs claims demands and expenses resulting from any failure by any person other than the Buyer to make such warnings data sheets diagrams and other information available to any other person.
The Buyer will notify the Seller of any intended application of the Goods other than that contemplated in the information referred to in sub-condition 5.4 above so as to enable the Seller to verify that the Goods will be safe for use in such application.
Under no circumstances except with the Seller’s consent shall the Buyer withhold payment of
any amount due to the Seller because of a disputed claim of any nature nor shall the Buyer be entitled to claim a right of set off, claim or counterclaim in respect of any of the Seller’s obligations arising in respect of matters other than this contract.
PASSING OF PROPERTY AND RISK
The property in any Goods delivered by the Seller to the Buyer shall remain in the Seller until such time as the Buyer has paid in full in cash or cleared funds for those Goods and for any other Goods delivered by the Seller to the Buyer.
Notwithstanding this reservation of ownership, and subject to sub-clause 6.3 the Buyer has
the Seller’s consent to re-sell as principal and in the ordinary course of the Buyer’s business any goods which remain the property of the Seller in which event the Buyer shall remit the proceeds of such sale to the Seller to the amount of any sums then owing under sub-clause 6.1 and until the Seller has received such proceeds in cash or cleared funds shall hold such proceeds of sale on behalf of the Seller in such a way that they are kept separate and are readily identifiable.
If the Buyer:-
has a bankruptcy petition issued against the Buyer; or
goes into liquidation whether voluntary or compulsory; or
makes an arrangement with the Buyer’s creditors; or
has an administrator or administrative receiver appointed over any of the Buyer’s assets; or
receives a written demand from the Seller to pay overdue sums owed to the Seller; then the Buyer’s consent from the Seller to do the acts referred to in sub-clause 6.2 shall determine
and be deemed to have determined forthwith and the Buyer shall not thereafter sell or use goods belonging to the Seller, save with the consent in writing of the Seller, until the Seller has been paid in full in accordance with sub-clause 6.1.
The Seller may recover and dispose of any Goods in which the Seller has retained the property under sub-clause 6.1 and upon the happening of any of the events referred to in sub clause 6.3 the Seller or persons authorised by the Seller may for that purpose enter upon any premises where such Goods may be to search for and remove such Goods.
The Buyer agrees to store all Goods that are the property of the Seller separately from the Buyer’s own goods in such a way that they are readily identifiable as such and to make a note in its accounting records that the goods are the property of the Seller.
ShapeNotwithstanding the provisions in sub-clause 6.1 the Goods shall be at the risk of the Buyer from the lime when they are tendered for delivery at an agreed destination or are available for collection by the Buyer or cease to be in the possession of the Seller and in particular when they are delivered into the possession or custody of a carrier, forwarding agent, warehouseman or other bailee or agent for the purpose of transmission whether or not such person contracts with or is instructed by the Seller or the Buyer and the Buyer shall insure the Goods to their full reinstationed value accordingly.
TERMINATION, SUSPENSION AND IMMEDIATE PAYMENT
If the Buyer commits any breach of these conditions including failure to pay any sums on the due date, or if, in the opinion of the Seller the financial standing of the Buyer becomes unsatisfactory the Seller may, without prejudice to its other rights and remedies, suspend deliveries or installation, terminate this contract and any other contract between the Buyer and the Seller forthwith by notice in writing to the Buyer. The Seller alternatively or also shall be entitled to require immediate payment for all Goods delivered or supplied under this and any other contract subsisting between the parties; and (where appropriate) payment in advance for any other goods prior to their delivery to the Buyer and/or (at the Seller’s option) security for payment in terms satisfactory to the Seller. In the event of termination under the provisions of this clause the Seller shall be relieved of all liability under this contract and any other contract so terminated.
FORCE MAJEURE
This contract is subject to cancellation by the Seller or to such variation as may be reasonably necessary by reason of inability to secure labour, materials, transport or supplies or by reason of strike, lockout, trade dispute, weather conditions, hostilities, legalisation, Act of God or any cause whatsoever beyond the control of the Seller and the Seller shall have no liability to the Buyer in relation thereto.
INSTALLATION
Where the Seller has agreed to install goods/carry out repairs it shall provide such technicians as are in its opinion suitable and may require the Buyer to provide at the Buyer’s expense the services of such labourers and such working and storage facilities (including scaffolding where necessary) drawings, equipment, power and services as the Seller shall consider necessary.
All sites will be assumed to be ready for installation and the Buyer will be responsible for
preparation of the site including erection of scaffolding where necessary.
Where the Seller undertakes work or provides labour at the Buyer’s premises or at other premises the Buyer shall indemnify the Seller against all loss expense and damage incurred by the Seller and against all claims by third parties (including the Seller’s own employees) arising directly or indirectly from defects in or unsuitability of the works or site or of apparatus or plant (other than apparatus or plant provided by the Seller) or from negligence or breach of statutory duty on the part of the Buyer or its employees (including employees whose services are provided under sub-clause 9.1 above) or agents or other occupiers and against all claims by third parties (other than the Seller’s own employees) howsoever arising whether at common law or from breach of statutory duty.
SPECIFICATION AND INDUSTRIAL PROPERTY
Specifications drawings data literature and statements as to dimensions suitability performance or otherwise issued by the Seller in connection with its Goods are offered in good faith but are intended to be approximate only and shall not be taken to apply to any particular Goods unless an express and specific guarantee is given to the Buyer separately in writing.
Except in any particular case in which the Seller expressly agrees in writing to the contrary
the Buyer is responsible for the correct selection of Goods ordered from or offered by the Seller and while the Seller may make recommendations and give assistance on such matters the Buyer shall not be entitled to rely on such recommendations or assistance and shall rely solely on such expertise as may be available to the Buyer from its own or other technical sources.
The copyright in drawings data and literature in relation to the Seller’s Goods shall remain the property of the Seller and (where marked as or otherwise indicated to be confidential) such drawings data and literature and the Seller’s confidential manufacturing and operating techniques shall not be disclosed or used except necessarily for the purpose of application and use by the Buyer of the goods in relation to which the drawings data literature or techniques was or were supplied or disclosed.
The Buyer shall not alter or deface any of the Seller’s registered trade marks as marked by the Seller on its goods or apply to them any other trade mark or written matter which is likely to create confusion or to injure the reputation of the Seller’s trade marks.
GENERAL
Any notice to be given under these conditions may be delivered, or be sent by prepaid post sent first class, addressed to the party to be served at its registered office for the time being or (if not a Company) the address for that party last known to the party giving the notice. Notices served by post shall (except where expressly provided otherwise) be deemed served on the second business day after the date of posting: “business day” shall mean a day other than a Saturday and Sunday or an English Bank or Statutory Public Holiday.
No failure or delay by the Seller in exercising any of its rights under this contract shall
operate as a waiver thereof.
In the event that any of these conditions or any part of these conditions shall be or become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any of the other conditions hereof or part of such conditions all of which shall remain in full force and effect.
Clause headings are for ease of reference only and do not affect construction.
EXPORT TERMS
In these Conditions “lncoterms” means the international rules for the interpretation of trade names of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of lncoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of lncoterms and these Conditions the latter shall prevail.
Where the Goods are supplied for export from the United Kingdom the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
The Buyer shall be responsible for complying with any legislation or regulations governing
the importation of the Goods into the country of destination and for the payment of any duties thereon.
Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be
delivered f.o.b. the air or sea port of shipment and the Seller shall be under no obligation to give notice under Section 37 (3) of the Sale of Goods Act 1979.
Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by the bank in England acceptable to the Seller.
PROPER LAW
This contract shall be governed by and construed in accordance with English Law and both parties consent to the non-exclusive jurisdiction of the English Courts.
ARBITRATION
The construction, validity and performance hereof shall be governed by the Law of England and all disputes which may arise under, out of or in connection with or in relation to the Contract shall be submitted to the arbitration of a single arbitrator to be appointed by agreement between the Seller and the Buyer or in default of agreement upon the application of either party by the President for the time being of the Law Society of England and Wales such arbitration to be conducted in accordance with the Arbitration Act 1950.
