Halsted Rain Ltd – Terms and Conditions of Sale
1. GENERAL
These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered or relied on by the buyer whether in negotiation or at any stage in the dealings between the parties with reference to the goods with which this contract is concerned. Without prejudice to the generality of the foregoing, the seller will not be bound by any standard or printed terms tendered by the buyer, unless the buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the seller in writing.
2. VARIATION
Neither the seller nor the buyer shall be bound by any variation, addition to, or amendment of these terms unless such is agreed in writing by the parties and signed on their behalf by a duly authorised party.
3. DESCRIPTION
Any description given or applied to these goods has been given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the buyer hereby affirms that he did not in any way rely on any description when entering into the contract.
4. SAMPLE
Notwithstanding that a sample of the goods might have been shown to and inspected by the buyer, the parties hereto accept that such sample was so shown and inspected for the sole purpose of enabling the buyer to judge for himself the quality of the bulk, and not so as to constitute a sale by sample.
5. LIABILITY
(a) No liability of any nature shall be incurred or accepted by the seller in respect of any representation made by the seller, or on his behalf to the buyer, or to any party acting on his behalf prior to the making of this contract where such representations were made or given in relation to:
(i) the correspondence of the goods with any description; or
(ii) the quality of the goods; or
(iii) the fitness of the goods for any purpose(s) whatsoever.
(b) No liability of any nature shall be accepted by the seller to the buyer in respect of any express term of this contract where such term relates in any way to:
(i) the correspondence of the goods with any description; or
(ii) the quality of the goods; or
(iii) the fitness of the goods for any purpose(s) whatsoever.
(c) All implied terms, conditions or warranties, statutory or common law, as to:
(i) the correspondence of the goods to any description; or
(ii) the satisfactory quality of the goods; or
(iii) the fitness of the goods for any purpose whatsoever (whether made known to the seller or not), are hereby excluded from the contract.
(d) Each provision of this clause is to be construed as a separate limitation, applying and surviving even if for any reason one or other of the fore-going provisions is held inapplicable or unreasonable in any circumstances and shall remain in force notwithstanding termination of this contract.
6. LIMITATION OF LIABILITY
Where any court or arbitrator determines that any part of clause 5 above is, for whatever reason, unenforceable, the seller will accept liability for all loss or damage suffered by the buyer but in an amount not exceeding the contract price.
7. SELLER’S WARRANTY
The seller undertakes that it will, at its option, either repair or replace defective goods where defects are found notwithstanding the proper installation and use of the goods, within 12 months from the date of delivery, provided that:
(a) notice in writing of the claimed defects is given to the seller immediately on their appearance;
(b) such defects are found to the seller’s satisfaction to have arisen solely from faulty design, workmanship or materials; and
(c) the goods claimed to be defective are returned to the seller at the expense of the buyer if so requested by the seller.
Any repaired or replacement goods shall be redelivered by the seller free of charge to the original point of delivery, but otherwise in accordance with these conditions of sale. As an alternative to the above, the seller shall be entitled in its absolute discretion to refund the price of the defective goods in the event that such price has already been paid. The remedies contained in this clause are without prejudice to the other terms of this contract, including, but without limitation, clauses 5 and 6 above.
8. WARRANTIES AND REPRESENTATIONS BY THE SELLER
The buyer confirms that it has not relied on any warranty or representation or undertaking of or on behalf of the seller (or any of them) or of any other person in respect of the subject matter of this agreement save for any representation or warranty or undertaking expressly set out in the body of this agreement.
9. PRICE
(a) All quotations and estimates issued by the seller are, except where expressly stated otherwise, subject to variation until they have been accepted in writing by the buyer.
(b) Without prejudice to the generality of the foregoing, any change in the applicable rate of VAT or of any other Government tax or levy shall be to the buyer’s account.
10. PAYMENT
(a) Payment for goods supplied is strictly 30 days after delivery or invoice date, whichever is the earlier
(b) If payment of the price or any part thereof is not made by the due date, the seller shall be entitled to:
(i) charge interest on the outstanding amount at the rate of 9% per annum above the Bank of England’s base rate, accruing daily;
(ii) require payment in advance of delivery in relation to any goods not previously delivered;
(iii) refuse to make delivery of any undelivered goods whether ordered under the contract or not and without incurring any liability whatever to the buyer for non-delivery or any delay in delivery; (iv) terminate the contract.
11. DELIVERY
The seller will deliver the goods carriage paid within the United Kingdom by such method of carriage as the seller may choose unless otherwise agreed beforehand.
12. RISK
The risk in the goods will pass to the buyer at the moment the goods are delivered to the buyer’s premises. Where the buyer chooses to collect the goods himself, risk will pass when the goods are entrusted to him.
13. TITLE
Title in the goods will not pass to the buyer but shall be retained pending payment in full of the contract price. Until such time as title passes to the buyer, the seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods in which title remains vested in him. For the purposes specified above, the seller or any of his agents or authorised representatives shall be entitled at any reasonable time during normal working hours to enter without notice onto any premises where the goods or any part of the goods are installed, stored or kept or are reasonably believed to be. The seller shall also be entitled to seek an injunction to prevent the customer from selling, transferring or otherwise disposing of the goods.
14. FORCE MAJEURE
If delivery is delayed by strikes, lock-outs, fire, accidents, defective materials, delays in receipt of raw materials or bought-in goods or components or any other cause beyond the reasonable control of the seller, a reasonable extension of time shall be granted and the buyer shall pay such reasonable extra charges as shall have been occasioned by the delay. If’ the delay persists for such time as the seller considers unreasonable, he may, without liability on his part, terminate the contract.
15. DELAYED DELIVERY
If a firm delivery date is specifically provided for, and the seller fails to deliver the goods by such time for reasons other than matters beyond its reasonable control, the buyer shall be entitled to claim a reduction in price by giving the seller notice in writing within a reasonable time, unless it can be reasonably concluded from the circumstances that no loss has been suffered. Such reduction shall in no circumstances exceed 10% of the price.
16. RELATIONSHIP OF PARTIES
Nothing in this agreement shall he construed as establishing or implying any partnership or joint venture between the parties, and nothing in this agreement shall be deemed to constitute either of the parties as the agent of the other or authorise either party:
(a) to incur any expense on behalf of the other party;
(b) to enter into any engagement or make any representation or warranty on behalf of the other party;
(c) to pledge the credit of, or otherwise bind or oblige the other party; (d) to commit the other party in any way whatsoever, without in each case obtaining the other party’s prior written consent.
17 ASSIGNMENT AND SUB-CONTRACTING
This agreement shall not be assigned or transferred nor the performance of any obligation sub-contracted in either case by the buyer without the prior written consent of the seller
18. COSTS AND OTHER EXPENSES
Except as specifically agreed to the contrary, any costs in relation to this agreement and its subject matter which are incurred by either of the parties shall be borne in full by that party.
19. SEVERABILITY
If any terms or provision in this agreement shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form any part of this agreement, but the validity and enforceability of the remainder of this agreement shall not be affected.
20. TIME TO BE OF THE ESSENCE
In relation to payment terms time shall be of the essence of this agreement, both as regards the dates and periods mentioned and as regards any dates and periods which may be substituted for them in accordance with this agreement or by agreement in writing between the parties.
21. WAIVER
The waiver or forbearance or failure by or of a party to insist on due and proper performance of the contract, whether by design or inadvertence, shall not be construed in any circumstances as a waiver or abandonment of that party’s rights to future performance of such provision and the other party’s obligation in respect of such future performance shall continue in full force and effect. 22 PROPER LAW This agreement shall be governed by and construed in accordance with English law and each party agrees to submit to the exclusive jurisdiction of the English courts as regards any claim or matter arising under this agreement.
23. ARBITRATION
Any disputes which arise out of or in connection with this agreement of whatsoever nature shall, if practicable, be settled by negotiation between the parties. If such disputes are not resolved within 21 working days of such negotiations commencing, and do not simply relate to non-payment by the buyer, then the matter shall be referred to arbitration. The parties shall agree on the identity of the arbitrator and, in the event of their failure to agree, the arbitrator shall he appointed by the President of the London Chamber of Commerce.
24. DISPUTE SETTLEMENT
If any dispute arises between the parties with respect to any matter within the expertise of a technical expert, then such dispute shall at the instance of either party be referred to a person agreed between the parties, and, in default of agreement within 21 working days of notice from either party to the other calling upon the other so to agree, to a person chosen on the application of either party by the President of the London Chamber of Commerce. Such person shall be appointed to act as an expert and not as an arbitrator. The costs of the expert shall be borne equally by the parties unless the expert decides that one party has acted unreasonably, in which case he shall have discretion as to the award of costs.
25. SET-OFF
All amounts due under this agreement shall be paid in full without any deduction or withholding other than such as may be required by law, and the party owing such amounts shall not be entitled to assert any credit, set-off or counterclaim against the other party in order to justify the withholding of any payment of any such amount in whole or part.
26. RETURNS
If the buyer is not 100% happy with the product, he may return it to the seller in its original condition within 14 days of purchase for a full refund or exchange. The refund will be made within two weeks of receiving the returned goods using the original method of payment. The goods must be returned in their original condition. Returning the goods is at the buyers own expense and is non-refundable. If items or packaging have been used or damaged the seller reserves the right to apply a re-stocking or repair fee which will be deducted from the refund.
27. PRESERVATION OF RIGHTS
The provisions of this agreement, and the rights and remedies of the parties under this agreement, are cumulative and without prejudice and in addition to any rights or remedies a party may have at law or in equity; no exercise by a party of any right or remedy under this agreement, or in law or in equity, shall (save to the extent, if any, provided expressly in this agreement or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.