HERMA UK Limited Conditions of Sale

   

1. Application of Conditions
2. The Contract
3. Cancellation
4. Termination
5. Notices
6. Unless otherwise agreed in writing the Contract shall in all respects be construed as an English contract and in conformity with English law.
7. The Courts of England shall have exclusive jurisdiction.
8. All orders are accepted subject to trade references being satisfactory.
9. Delivery
10. Storage
11. Risk
12. Loss or damage in transit
13. Liability
14. Prices
15. Payment
16. Security
17. Taxes and Permits 18. Headings

  

1. Application of Conditions

These Conditions apply to all sales by HERMA UK LTD (“Seller”) of goods to any buyer (“Buyer”)

  

2. The Contract

a) The Contract consists of the Buyers Order and the Sellers Acknowledgement (effective on posting) including these Conditions but excluding the provisions of the Order which conflict with or are in addition to the acknowledgement or the Conditions in particular no terms, conditions or reservations stipulated by the Buyer (even if the same shall have been signed by the Seller) or any purported variation or delegation from or addition to these Conditions except so far as the same are expressly agreed in writing by the Head Office of the Seller.

b) No servant or agent of the Seller has power to vary these Conditions orally.

c) No relaxation forbearance delay or indulgence of the Seller in enforcing any of its strict rights hereunder shall affect prejudice or restrict such rights and any waiver by the Seller in respect of any breach of contract by the Buyer shall not operate as a waiver of any subsequent or continuing breach.

d) In the event that any Condition (or part thereof) shall breach or be unenforceable under any rule of law or legislation it shall be of no effect but all the other provisions of the Conditions shall remain in full force and effect and shall be severable from such offending Condition or part of it. The parties agree that as from the date of such judicially certified breach or unenforceability they will assume obligations as near as may be to those contained in the offending Condition or part thereof.

e) The Seller reserves the right to amend its price list quotations, invoices and credit notes to correct any errors.

f) Any statement as to price, quantity, periods of availability for purchase of any item of goods referred to in any price list quotation, catalogue, advertisement or other similar document of the Seller is an invitation to treat only and does not constitute an offer by the Seller to sell on those terms, and the Buyer acknowledges that it has not or will not enter into the Contract in reliance on any such statement.

 

  

3. Cancellation

No contract may be cancelled without the consent of the Seller. If any Contract is with the consent of the Seller cancelled the Buyer shall indemnify the Seller for all costs and consequential losses claimed by the Buyer to have arisen out of such cancellation or at the option of the Seller and as a genuine pre-estimate by the parties of the loss likely to be suffered by the Seller, pay to the Seller liquidated damages of 10 per cent of the value of the order, subject to a minimum of £ 50.

 

 

4. Termination

a) If the Buyer shall become bankrupt or make any composition with the Buyers creditors or if a receiver shall be appointed of the whole or any part of the assets of the Buyer or if a resolution shall be passed or petition be presented or any order made for the winding up of the Buyer or if the Buyer shall fail to pay for any goods supplied by the Seller on the due date the Seller may immediately without notice terminate the Contract with the Buyer without prejudice to any rights which may be accrued to the Seller prior to such termination.

b) The Seller may immediately without notice terminate the Contract with the Buyer without payment of any compensation (subject to a refund of sums paid where delivery has not been made) if the products to be supplied hereunder are no longer available in such a way that fulfilment of the Contract is not in the Seller’s opinion possible.

 

 

5. Notices

Any notices or other communication required or permitted hereunder shall be given in writing to the other party at the address stated overleaf or at such other address as shall be given by either party to the other in writing. Such a notice shall be deemed to have been given or made when delivered personally or placed properly addressed post registered and pre-paid, in the mail of the UK, or communicated by telex during the working hours of the other party.

 

 

6. Unless otherwise agreed in writing the Contract shall in all respects be construed as an English contract and in conformity with English law.

 

7. The Courts of England shall have exclusive jurisdiction.

 

8. All orders are accepted subject to trade references being satisfactory.

 

 

Sellers Obligations

9. Delivery

9. Delivery a) Notwithstanding acceptance of an order all goods are sold subject to availability (i.e. goods of the Contract description owned and warehoused by the Seller) at the time of delivery. b) Unless otherwise specified overleaf the Contract price excludes delivery to any premises of the Buyer in Great Britain, Northern Ireland and Eire. c) The Buyer shall provide sufficient labour and equipment to offload the goods at the place of delivery. d) Any times quoted for delivery are to be treated as estimates only and the Seller shall not be liable for failure to deliver within such time unless the Buyer has suffered loss thereby and the amount payable thereof shall have been agreed in writing on the signing hereof as liquidated damages, in which case the Seller’s liability shall be limited to that amount. In all cases, whether a time for delivery be stated or not the time for delivery shall be extended by a reasonable period if delay is caused by instructions or lack of instructions from the Buyer or by industrial dispute or by any cause whatsoever beyond the Sellers reasonable control. e) Delivery may be made in instalments.

 

10. Storage

If the Buyer fails to take delivery on the agreed delivery date or, if no specific delivery date has been agreed when the goods are ready for delivery, the Seller shall be entitled to store and insure the goods and to charge the Buyer the reasonable cost of so doing and to tender its account for the price (inclusive of such costs) under condition 15.

 

11. Risk

Risk of loss or damage to the goods shall pass to the Buyer when the goods have been delivered to the Buyer or to his agent or when they leave the Sellers premises whichever occurs first, or, in the event that they are delivered in the Sellers own transport, when they leave such transport.

 

12. Loss or damage in transit

a) When the price quoted includes delivery the Seller shall repair or replace free of charge goods damaged in transit or not delivered in accordance with the advice note subject to the following Conditions.

i. All goods must be examined by the Buyer immediately on receipt.
ii. The delivered goods are to be accepted by the Buyer if they have no more than immaterial defects. Crates and other packaging material are to be checked prior to acceptance to determine any damage or theft. Damaged goods are to be accepted from the carrier only after his written acknowledgement of the damage. Defect in part of a consignment does not entitle the Buyer to repudiate the entire delivery, where breakage or shortage has been sustained the carriers receipt note must be endorsed to this effect and the Buyer must in addition notify the carrier and the Sellers sales officer within 48 hours.
iii. All damaged goods which are accepted must be kept for inspection by the Seller or carrier until otherwise advised by the Seller.
iv. In the event of goods ordered not being received within 14 days of invoice date the Seller must be notified thereof in writing immediately.

NO CLAIMS CAN OTHERWISE BE ENTERTAINED AND SELLERS LIABILITY FOR NON-DELIVERY OR SHORT DELIVERY OR DAMAGE IN TRANSIT SHALL IN ANY EVENT AND NOTWITHSTANDING THE FOREGOING BE LIMITED BY AND SUBJECT TO THE TERMS GOVERNING THE LIABILITY OF THE CARRIER.

 

13. Liability

a) Any description or details of goods given by the Seller are meant only as a general indication of the nature of the goods and the Seller shall not be liable for nor shall the Buyer be entitled to any remedy on the ground of discrepancies between the same and the goods supplied. In particular published dimensions, weights, services and other data are only approximate. They are binding only when they have been expressly warranted.
b) Goods previously supplied by the Seller shall not be sample for goods subsequently to be sold and the Seller does not guarantee that goods of the same description will correspond with goods previously sold in respect of their composition manufacture or characteristics. No sale by the Seller shall be a sale by sample.
c)
i. It is the Buyer’s responsibility to satisfy itself that the goods supplied are suitable for its requirements and the Seller does not profess to have any skill or judgement in relation to the particular needs of the Buyer
ii. All goods supplied by the Seller to the Buyer will be supplied on the basis that they are not required for any special purpose different from the usual purpose for which such goods are supplied and the Buyer shall be deemed to have full knowledge of the nature and properties of the goods supplied.
d)
i. Any goods supplied by the Seller which the Buyer shall prove to the Seller’s satisfaction to have been defective through faulty materials design or workmanship will at the Buyer’s option be repaired or replaced or, insofar as the goods are not thereby rendered useless for the purpose for which they were supplied under the Contract, the loss in value thereof reimbursed if the Seller decides to provide a repair or replacement the Buyer may, if such repair or replacement proves unsuccessful, request either abatement of payment or the rescission of the Contract. Repairs shall be deemed to be unsuccessful where either a reasonable number of attempted repairs (at least 2 however) have not proved successful, or if they proved to be otherwise impossible, or if they have been refused or if they have not been performed within a reasonable period of a request to do so.

Provided that the defects appear under proper use in an appropriate environment within 6 calendar months of delivery and the Seller is notified in writing of such defects within 14 days after such appearance and provided that the goods alleged to be defective, or samples thereof, as and if requested by the Seller, are returned to the Seller in the manner and within the time, specified in Seller’s said request. The cost of such carriage of the returned parts in accordance with Seller’s request to be borne by Seller where the goods are proved to be defective, and in other cases by Buyer.

ii. Excluded from the Contract are defects or damage which are due to normal wear, faulty operation improper treatment or any other exceptional operating Conditions or interventions by third parties without the Seller’s consent.

e) The Seller does no exclude or restrict its liability
i. for death or personal injury resulting from negligence of the Seller its servants or agents (but not independent contractors) while acting in the course of their employment by the Seller; or
ii. for breach on the part of the Seller of any undertaking as the title implied by Section 12 of the Sale of Goods Act 1979; or
iii. if the Buyer himself does not make the Contract in course of business or hold himself out as doing so but not otherwise, for breach on the part of the Seller of any undertaking implied by Sections 12 to 15 inclusive of the Sale of Goods Act 1979.

f) Save as afore said warranty referred to in sub-clause (d) above is in substitute for an shall replace all conditions and warranties on the part of the Seller implied by statute common law or otherwise all of which are expressly excluded. The Seller does not make or give nor has any servant or agent of the Seller authority to make or give any representation or undertaking as to the quality of the goods or their correspondence with description or as to their fitness for any particular purpose or otherwise about the goods. The Buyer understands that he must rely exclusively on the technical specification applicable to the goods produced and supplied prior to the date hereof by the Seller.

g) Subject to sub-clause e (i) hereof, whether the Buyer has notified the Seller of its intention to sell the Goods to a third party of different destination or not the Seller be under no obligation to ensure that the goods comply with the requirements of that third party or the laws or regulations of any country other than United Kingdom and the Buyer shall have no recourse whatsoever against the Seller should the goods be unfit for the purpose required.
h) Subject to sub-clause e (i) hereof, notwithstanding anything herein contained the Seller shall not in any circumstances be under any liability to the Buyer in respect of any consequential or special loss or damage sustained by the Buyer caused by breach of contract, negligence or howsoever.
i) These terms and Conditions do not affect or prejudice the statutory rights of the Buyer where the Buyer is a consumer acquiring goods otherwise than in the course of a business.

 

14. Prices

a) All prices quoted in any document by the Buyer are exclusive of VAT.

b) The Contract Price stated overleaf is unless otherwise stated based on current costs of supplying (including without prejudice to the generality thereof wages, insurance, rates of exchange, packing and carriage) and is subject to amendment without notice on or after acceptance to meet any rise or fall in such cost between the date of the order and the date of delivery. Any variation to prices stated as a result of Government taxes or levies will also be for the Buyer’s account.

c) In the event that the Seller performs services requested by the Buyer in relation to the goods which he is not obliged by this Contract to perform (including without prejudice to the generality of the foregoing services of installation, maintenance, or repair other than pursuant to the warranty), the Seller shall be entitled to charge the Buyer for those services and any parts supplied in connection therewith at its then current rates, and invoice the Buyer in respect thereof; payment to be made within 30 days of invoice.

 

15. Payment

a) Standard payment terms shall be within 30 days net, from the date of the invoice.

b) The Buyer shall be liable to pay interest on all overdue invoices in accordance with current UK late payment legislation.

c) The Buyer shall be liable to pay all reasonable third party charges incurred by the seller for the collection of all overdue invoices.

d) In respect of orders for special assemblies, machines and other appliances, if the Buyer’s order exclusive of VAT is in excess of £5,000 in value.

i. 40% of the value of the order will be invoiced immediately on receipt of the order and will be due and payable within 10 days of receipt on the invoice.

ii. 50% of the value of the order will be invoiced on delivery of the goods and will be due and payable within 10 days of receipt of the invoice.

iii. 10% of the value of the order will be invoiced on delivery of the goods and will be due and payable within 30 days of receipt of the invoice.

e) The Buyer shall have no right of set-off in respect of any claims it may make against the Seller.

f) Should the Seller have reasonable grounds for doubting the Buyers’s ability or willingness to pay on due dates it shall be at liberty to cancel the Contract or to postpone delivery until payment has been received.

g) Bills of Exchange are accepted only by special agreement and against payment of discounting charges and shall be deemed payment only after they have been honoured. Payment by Bill of Exchange does not entitle the Buyer to deduct the discount. On all payments beyond 30 days, we reserve the right to invoke “The late payment of commercial debts (interest) Act 1998” as amended and supplemented by the late payment of commercial debts regulations 2002.

h) Before due invoiced amounts have been paid in full the Seller is under no obligation to make any further deliveries pursuant to existing Contracts.

 

16. Security

a) The goods shall remain the property of the Seller until all sums due under this Contract have been paid in full (in the case of cheques or bills of exchange when these have been honoured) by the Buyer and until such payment the Buyer shall hold the goods (and all items incorporation the goods) as bailee on behalf of and in a fiduciary capacity for the Seller and shall store and insure the goods in such a way as to be identifiable as the property of the Seller. The Buyer shall neither pledge nor assign them as security. The Seller shall immediately be notified of any execution levied against the goods or a seizure by third parties.

b) Notwithstanding sub-clause (a) of this clause the Buyer shall be entitled to sell the goods as principal in the ordinary course of his business and in the event of such sale property in the goods shall pass to the Buyer and thereafter to the Purchaser.

c) If the goods are processed by the Buyer with goods which are not the Seller’s property contrary to 16 (a) above, the Seller shall hold title in the newly created goods in proportion to the sum due in 16 (a) above.

d) If the goods are sold before the Seller has been paid in full either without being processed or after having been processed the Buyer shall hold the proceeds of sale on trust for the Seller.

e) In the event of non-payment by the Buyer by the date the Seller shall be entitled in addition to all other rights, to enter upon any land or premises where the goods, the property of the Seller may for the time being be using (or be reasonably thought to be) using such measure as may be reasonably necessary to gain access to such land or premises and recover possession of them.

 

17. Taxes and Permits

a) In addition to all charges specified overleaf the Buyer shall pay or reimburse the Seller for all taxes and duties (not based in the Seller’s net income) whether levied on such charges or on the goods or their use by the Buyer. Taxes, customs and duties which have been paid by the Seller are to be reimbursed to the Seller within 5 days of the date on which these sums were paid out.

b) The Buyer is solely responsible for obtaining all permits and approvals necessary for shipment, import and export of all goods supplied hereunder.

 

18. Headings

The headings contained in this Contract are for the purposes of convenience only and do not form part of and shall not affect the construction of this Agreement or any part thereof.