“Buyer” means the person or company whose Order for the Products is accepted by the Company; “Company” means Hughes Safety Showers Limited; “Contract” means any contract between the Company and the Buyer for the sale and purchase of the Products; “Order” means the written purchase order by the Buyer; “Products” means any products or services, which the Company is to supply to the Buyer (including any of them or any part of them).
2. BASIS OF SALE
2.1 All contracts for the sales of products made by or on behalf of the Company will be on these terms and conditions (the “Conditions”) to the exclusion of all other terms and conditions (unless the parties have agreed otherwise in writing).
2.2 Orders are in all cases subject to written acceptance by the Company. No addition to or variation of these Conditions and no oral stipulation or representation shall be binding on the Company unless expressly agreed to in writing and signed by a Director or the Secretary of the Company on its behalf.
2.3 Save as otherwise provided no Order may be cancelled by the Buyer once it has been accepted by the Company except with the written agreement of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the Company as a result of such cancellation.
3.1 Prices of the products shall be those agreed or quoted by the Company or as stipulated in the current price list. The Company shall have the right to change its prices or withdraw any Products from the range of products offered by the Company without notice, except where the Company has expressly stated in writing that a price is firm and during what period the price will be held firm.
3.2 Except as otherwise expressly stated, all prices quoted are (i) exclusive of any Value Added Tax or any other applicable tax which the Buyer shall pay in addition when it is due to pay for the products. All Orders are subject to minimum charge of $100.00, unless agreed otherwise in writing.
4.1 The Company may invoice the Buyer for the products at any time after despatch. Time for payment shall be of the essence. The Buyer shall pay the Company’s invoice within 30 days from the date of the invoice date (unless where agreed otherwise in writing and signed by a Director or Secretary of the Company). All customer accounts are subject to satisfactory credit checks and credit accounts are maintained within appropriate credit limits.
4.2 If the Buyer fails to make any payment under this Contract on the due date the Company shall be entitled (without prejudice to any other rights or remedy it may have) to cancel or suspend any further deliveries to the Buyer under any Order and charge the Buyer interest on the amount unpaid from the due date until payment is made in full at the rate of 3% p.a. above the base rate for the time being of the Bank of England. All payments payable to the Company under this Contract shall become due immediately upon termination of this Contract despite any other provision.
5.1 Delivery of the Products shall be made ex-works (Incoterms 2010). If carriage is required the Products shall be delivered by such means as the Company thinks fit unless the Buyer has specified in its Order the details of the contract with the carrier which it reasonably requires having regard to the nature of the Products and the other circumstances of the case. The costs of such transport shall be borne by the Buyer. Where the Buyer arranges for carriage the Buyer will take delivery of the Products within 3 working days of the Company giving it notice that the Products are ready for delivery.
5.2 The Company shall endeavour to comply with delivery dates quoted by it but time for delivery shall not be of the essence and the Company, subject to the other provisions of these conditions, shall not be liable for any failure delay or error in delivery nor shall it be liable for any consequential loss (including loss of profit) costs, damages, charges or expenses arising directly or indirectly therefrom however caused.
5.3 If the Buyer fails to take delivery of any Products when they are ready for delivery or to provide adequate instructions, documents, licences or authorisations required to enable the Products to be delivered on time (except because of the Company’s fault) the Products will be deemed to have been delivered and (without prejudice to its other rights) the Company may:
(a) store or arrange for the storage of the Products until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance);
(b) following written notice to the Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract.
6. RISK AND OWNERSHIP
6.1 Risk of damage to or loss of the Products shall pass to the Buyer upon delivery. Ownership of the Products shall not pass to the Buyer until the Company has received in full all sums due to it in respect of (i) the Products and (ii) all other sums which are or which become due to the Company from the Buyer on any account.
6.2 Until ownership of the Products has passed to the Buyer, the Buyer shall
(a) hold the Products on a fiduciary basis as the Company’s agent;
(b) store the Products (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
(d) maintain the Products in a satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company.
6.3 The Buyer may resell the Products before ownership has passed to it solely on the following conditions;
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value
and the Buyer shall account to the Company accordingly; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.4 The Company shall be entitled to recover payment for the Products notwithstanding that the ownership of any Products has not passed from the Company.
6.5 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or where the Buyer’s right to possession has terminated, to recover them.
6.6 The Company will not accept the return of Products from the Buyer beyond any valid claim brought under condition 9.2
It shall be the responsibility of the Buyer to inspect and check the Products as soon as reasonably practicable after delivery to ensure that the quality, condition, quantity and specification of the Products conform to the instructions in the Order.
All returns of defective Products must be authorised in advance in writing by the Company and returned to the Company’s place of business at the Buyer’s cost and risk; thereafter the buyer will be compensated for any out of pocket expenses incurred as a direct result of any fault of the Company.
8.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Products will comply with the specification as set out in the Acknowledgement of Order as accepted and agreed upon by the Company.
8.2 The Company shall not be liable for a breach of the warranty in condition 8.1 unless a claim is brought within 12 months from the date of delivery.
8.3 The Company shall not be liable for a breach in condition 8.1 if;
8.3.1 the failure to comply with the specification arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if these are none) good trade practice; or
8.3.2 the Buyer alters or repairs such Products without the written consent of the Company; or
8.3.3 the failure to comply with the specification arises from any design defect in any drawing, design or specification supplied or approved by the Buyer.
9.1 The Company shall not be liable to the Buyer for any shortfall in the quantity of Products delivered unless the Buyer inspects the Products and notifies the Company of any claim within 7 days of delivery and where any such valid claim is made the Company shall supply the shortfall free of charge at the Buyer’s risk or at the Company’s sole discretion, reduce the Company’s invoice by the sum equivalent to the shortfall, but the Company shall have no further liability to the Buyer.
9.2 Where any valid claim is brought under condition 8.2 the Company shall either;
(a) replace the Product(s); or
(b) repair the Product(s); or
(c) refund to the Buyer the price of the Products (or a proportionate part of the price) free of charge save for transport costs or provide the Buyer with credit against any future orders but the Company shall have no further liability to the Buyer.
9.3 Except as expressly provided in these conditions no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, durability or fitness for purpose of the goods is given or assumed by the Company and all such warranties, conditions, undertakings and terms are hereby excluded insofar as permitted by law. The Company shall not in any case be liable to the buyer or to any other party for direct, special, incidental, consequential, indirect or similar loss or damage (including all manner of costs, fees and expenses including loss of profit) arising from breach of warranty, breach of contract, negligence or any other cause howsoever except as expressly provided in these conditions and insofar permitted by law.
10. FORCE MAJEURE
The Company shall not be liable to the Buyer in any manner or be deemed to be in breach of this Contract because of any delay in performing or any failure to perform any of the Company’s obligations under this Contract if the delay or failure was due to any cause beyond the Company’s reasonable control.
11. INSOLVENCY AND DEFAULT
If the Buyer does or fails to do anything which would entitle any person to appoint a receiver of the whole or any part of the Buyer’s assets or which would entitle any person to present a Petition for an Administration Order or the Winding-Up of the Buyer makes any composition with its creditors or suffers any execution to be levied upon its property, or ceases, or threatens to cease, to carry on business or commit any breach of this or any other Contract between the Company and the Buyer, the Company may without prejudice to any of its other rights under these conditions stop any goods in transit and/or suspend further deliveries forthwith and/or by notice in writing to the Buyer terminate the Contract.
No waiver by the Company of any breach of the Contract by the Buyer shall be construed as a waiver or any subsequent breach of the same or any other provision.
If any provision of these Conditions or any part thereof is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.