HHB - TERMS AND CONDITIONS FOR SALE OF GOODS
In these terms:
1.1 "Conditions" means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes the particulars of any sale as set out in any delivery note; invoice or acknowledgement of order issued by the Company to the Buyer and any special terms and conditions otherwise agreed in writing by an authorised employee of the Company;
1.2 "Buyer" shall mean the person or persons, firm or company who purchases the Goods from the Company
1.3 "Company" means HHB Communications Limited (company registration no. 2316548 registered in England) whose registered office is at 73-75 Scrubs Lane London NW10 6QU trading as "HHB"; "Scrub" and "Source Distribution"
1.4 "Contract" means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating the Conditions
1.5 "Authorised employee" shall mean a director of the Company
1.6 "Goods" shall mean any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them)
1.7 "Writing" includes any facsimile transmission; electronic mail; telex; cable or other comparable media acceptable to a Court of Law in England and Wales
2. Application of Terms
2.1 Subject to any variation under condition 2.2 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document) and any references to any conditions of the Buyer in the Contract shall not imply that they are incorporated into the Contract
2.2 These conditions apply to all the Company's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised employee of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract
2.3 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to the Conditions
2.4 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company
2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company dispatches an acknowledgment of order to the Buyer and in the event of no acknowledgement of order being sent all quotations shall lapse after 30 days of issue by the Company or withdrawal upon notice by the Company whichever shall be the earlier
2.7 If the identity of the Buyer shall be wrongly specified or misrepresented to the Company on any order accepted by the Company the individual; firm or company specifying the Buyer shall be liable personally to the Company as if the Buyer
2.8 Any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage application or use of Goods which is not confirmed in writing by an authorised employee of the Company is followed or acted upon at the Customers entire risk and expense and the Company shall not be liable for any such advice or recommendation not so confirmed
3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of given an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
4.1 The price for the Goods shall be exclusive of any value added tax and (where applicable) all costs or charges in relation to the Company importing and exporting the Goods, packaging, loading, unloading, carriage and insurance all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods. Any insurance shall exclude losses in relation to terrorism.
4.2 Unless otherwise agreed by an authorised employee of the Company in writing, prices for Goods shall be as published by the Company from time to time subject to alteration upon the Company notifying the Buyer at any time before invoice whereupon the Buyer shall be entitled to cancel the Contract without liability in writing to the Company within three days of receipt of such notice.
4.3 VAT will be charged at the rate appropriate at the date of the invoice
4.4 Where a price is quoted in currency other than pounds (£) sterling the invoice price unless otherwise agreed by an authorised employee of the Company in writing will be calculated in pounds (£) sterling by reference to the mid-market rate offered by the Company's bankers at the date of the invoice
5.1 Subject to condition 5.4 payment for Goods shall be made by the Buyer upon receipt of invoice or otherwise in accordance with the terms stipulated on invoice or agreed with an authorised employee of the Company
5.2 Time for payment shall be of the essence
5.3 No payment shall be deemed to have been received until the Company is in receipt of cleared funds
5.4 All payments payable to the Company under the Contract shall be due immediately on its termination despite any other provision
5.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer
5.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Company's Bank accruing on a daily basis until payment is made whether before or after any judgement
5.7 Despite any other provision available to the Company under the terms of this Contract in the event of the Buyer failing to pay any sum due to the Company by the due date the Company may, in its discretion, and without any prejudice to any other right or remedy available to it suspend or cancel any further deliveries to the Buyer whether under the particular Contract or otherwise and in the case of suspension until payment of all outstanding amounts has been received by the Company
5.8 In addition to any other remedy available to the Company under the Contract if the Buyer fails for any reason to pay any sum owing to the Company when due the Company may at any time thereafter without notice cancel the Contract in writing and shall thereafter resell the Goods at such price as the Company shall deem reasonable. The Buyer shall indemnify and keep indemnified the Company against the difference between the invoice price to the Buyer and the resale price together with all costs (including without limitation any professional costs) expenses and storage charges incurred pending or upon such resale. Method of payment shall be at the discretion of the Company
6.1 Unless otherwise agreed in writing by an authorised employee of the Company delivery of the Goods shall take place at the Company's principal place of business or at the Company's discretion from manufacturers or other premises in the United Kingdom.
6.2 The Buyer shall take delivery of the Goods within 7 days of the Company giving notice that the Goods are ready for delivery
6.3 Any dates specified by the Company for delivery of the Goods shall not be made of the essence
Within mainland UK
7.1 The Buyer shall be responsible for arranging (and paying for) the loading and collection of the Goods from the Delivery Point and their transportation to the Buyer's premises and the provisions of clause 9.1 shall continue to apply whilst the Goods are in transit
7.2 Where the Company agrees in writing to arrange delivery of the Goods pursuant to any Contract delivery shall be at the risk and expense of the Buyer and if made by a third party carrier shall be subject to the third party's standard terms and conditions whether or not the Buyer shall have prior notice of the same
7.3 The Company does not guarantee the services of any independent courier or the timescales for transportation of the Goods to the Buyer's premises and no liability shall attach to the Company for the failure of the independent courier to deliver at any stated time or on any stated date nor shall the Company have any liability for any delivery made to the stated address when unattended or attended by a person or persons other than the Buyer
7.4 Where delivery is to be arranged by the Company the right is reserved to deliver Goods in more than one consignment and without prior notice
7.5 The Company shall not be obliged to comply with any of the Buyer's packing instructions or requests. The specification for packing shall be at the Company's entire discretion in such materials and in such quantities as the Company shall deem fit
7.6 All Goods to be transported outside England, Wales and Scotland will be exported on a strictly Ex-works basis in accordance with the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date of the Contract
8.1 The quantity of any consignment of Goods as recorded by the Company on dispatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
8.2 The Company shall not be liable for any non-delivery of Goods (howsoever caused) unless the Buyer gives written notice within 3 days of the date when the goods would in the ordinary course of events have been received
8.3 Any liability of the Company for non-delivery of the Goods shall, at the discretion of the Company, be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods
9.1 The Goods are at the risk of the Buyer from the time of delivery
9.2 Notwithstanding condition 9.1 or any other provisions of these conditions or other provisions which may be implied in these conditions, ownership of the Goods shall not pass to Buyer until the Company has received in full (in cash or cleared funds) all sums due to it whether under the particular Contract or any other contract
9.3 Until ownership of the Goods has passed to the Buyer the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee
(b) store the Goods (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 at all times
(c) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks.
9.4 The Buyer may resell the Goods before ownership has passed to it on the condition that any sale shall be effected in the ordinary course of the Buyer's business at full market value and 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 but shall hold the proceeds (tangible and intangible) of any resale reuse or of any insurance claim upon trust for the Company and shall account to the Company for the same and shall keep all such proceeds separate from its own monies or property and in the case of tangible proceeds stored protected and insured
9.5 The Buyer shall not be entitled to pledge or in any way charge by way of security or otherwise Goods which remain the property of the Company but if the Buyer purports to do so the Goods shall be returned immediately to the Company
9.6 The Buyer's right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given b y the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods
9.7 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company
9.8 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or where the Buyer's right to possession has terminated, to recover them.
9.9 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer
9.10 On termination of the Contract, howsoever caused, the Company's (but not the Buyer's) rights contained in this condition 9 shall remain in effect
9.11 For the purposes of this condition 9 payment is made to the Company in the case of cash when released to the Company's control to the exclusion of the Buyer and in the case of payment by any other method when money is irrevocably credited to the Company's bank account and all claims in respect of such money by or through the Buyer are excluded
The Buyer shall inspect Goods within 3 days of collection or delivery of the Goods if arranged by the Company and shall within such period notify the Company of any defects or shortages in writing. If the Buyer fails to give such notice the Goods shall be deemed for all purposed to be in accordance with this Contract and the Buyer shall be bound to pay for the same in full
11.1 Subject to the succeeding provisions of this clause 11 the Company warrants that Goods will correspond with their specification upon delivery and will be free from defects in material and workmanship for such period and subject to such conditions as are specified by the manufacturer of Goods whether in documents accompanying Goods or otherwise
11.2 The above warranty is given by the Company subject to the following conditions:-
(a) The Company shall have no liability in respect of any defects in Goods arising from any specifications, information, quantities drawings or designs provided to the Company by the Buyer which are inaccurate or misleading
(b) The Company shall have no liability for fitness or suitability for purpose
(c) The Company shall have no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions excessive use failure to follow manufacturer's instructions misuse alteration or repair without the manufacturer's approval
(d) The Company shall have no liability in respect to Goods if the total price for Goods has not been paid by the due date for payment or any money shall be due from the Buyer to the Company under any other Contract
11.3 The Company shall not be liable for any breach of the warranties in condition 11.1 unless:
(a) the Buyer gives written notice of the defect to the Company and if the defect is as a result of damage in transit to the carrier within 3 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's principal place of business for the examination to take place there
11.4 Notwithstanding any other provision of the Contract the Company shall not be liable for a breach of the warranties in condition 11.1 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, application, installation, commissioning, use or maintenance of the goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company; or
(d) the Goods have been used by the Buyer:
(i) for a purpose other than specified by the Buyer and/or
(ii) in conditions not reasonably similar to those used in the testing process;
11.5 Subject to conditions 11.2, 11.3 and 11.4 if any of the Goods do not conform with any of the warranties in condition 11.1 the Company shall at its option replace such number of the Goods under the Contract that do not confirm with the warranties, or refund the price of such Goods at the pro rata Contract rate for each unit of the Goods that does not comply with the warranties
11.6 If the Company complies with condition 11.5 it shall have no further liability for a breach of any of the warranties in condition 11.1 in respect of such Goods
12. LIMITATION OF LIABILITY
12.1 Subject to condition 6, condition 8 and condition 11, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent of the law, excluded from the Contract. The statutory rights of consumers (within the meaning of the Unfair Contracts Terms Act 1977) are not affected by these conditions.
12.3 Subject to condition 12.2
(a) the Company's total liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of or in any way in relation to the Contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer under the Contract or otherwise or for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or pursuant to any act, omission, negligence or fault of the Buyer
12.1 The Company may assign the Contract or any part of it to any person, firm or company or otherwise deal with the whole or any part of the liabilities of the Buyer to the Company as the Company shall deem fit
12.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company
13. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials
14.1 In the event of any order being cancelled by the Buyer prior to delivery of the Goods in whole or in part the Company reserves the right to invoice or otherwise hold the Customer liable for any losses incurred including (without prejudice to the generality of the foregoing) loss of profit charges for carriage freight, insurance and handling charges.
14.2 Without prejudice to the generality of condition 14.1 in the event of an order being cancelled in whole or in part the Company shall be entitled to charge the Buyer a handling charge equal to fifteen percent of the total price of Goods not delivered.
14.3 If the Buyer shall make default in any payment or commit any breach of any other obligation to the Company under a Contract or under any other contract with the Company or compound with or execute an assignment with its creditors or (being an individual) commit any act of bankruptcy or have a petition or receiving order in bankruptcy presented or made or (being a company) makes any resolution to wind-up or suffer a receiver administrative receiver or manager of the whole or any part of its assets or business to be appointed or have a petition for its winding-up presented the Company shall be entitled without prejudice to any other remedies or claims to cancel any orders of the Buyer in whole or in part and stop any Goods in transit to the Buyer.
15.1 The Buyer shall not(and shall procure that its employees and agents shall not) without prior written consent from an authorised employee of the Company disclose to any third party any information or documentation or data on any other media of a confidential nature the property of the Company save any such previously in the public domain.
15.2 The Buyer shall not copy or reproduce any drawings or specifications or other written material supplied by the Company in connection with Goods
15.3. The Buyer shall hold harmless and fully indemnify the Company for any loss incurred by the Company in respect of any breach by the Buyer or any third party who purchases or hires Goods from the Buyer of any copyright or other intellectual property rights licensed to the Company or as is provided with Goods
16. EXPORT SALES
16.1 The Buyer warrants to the Company that it is entitled to import the Goods to the country or territory of its direction without licence or other authority and without imposing any obligation or liability upon the Company
16.2 The Buyer shall be solely responsible for complying with any legislation or regulations governing the importation of Goods to the country or territory of its direction and the transit thereto and for payment of any duties taxes or other impositions thereon
16.3 If export licences from England are required or import licences to the country or territory of the Buyer's direction or the transit thereto are required the Buyer shall be responsible for obtaining the same with such assistance from the Company as it may reasonably require subject to paying such reasonable charges as the Company may require for time expended and any other costs and disbursements incurred
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not
17.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect
17.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract
17.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it
17.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17.7 These Conditions supersede all prior agreements and arrangements between the parties relating to the sale of Goods by the Company and all such agreements and arrangements are hereby terminated without prejudice to any rights which may have accrued to either party
18.1 Notwithstanding the provisions of clause 11 of the Conditions and any other conditions under the Contract, the Company may at its sole discretion:
Where the quantity of Goods specified by the Buyer under the Contract exceeds its needs:
a) agree that the Buyer may return any excess Goods to the Company for a refund of the price paid for the Goods being returned, provided that;
i. the Buyer bears the cost of returning such Goods to the Delivery Point; and
ii. the risk of the Goods shall remain with the Buyer until the Company has received the Goods at the Delivery Point and the Company has inspected the Goods; and
iii. the Company shall not be obliged to accept any returned Goods that it reasonably considers not to be in good condition
iv. any Goods that are not accepted by the Company shall remain at the risk of the Buyer and, at the cost of the Buyer, will be dealt with in accordance with the Buyer's reasonable instructions; and
v. the Buyer shall remain liable under the Contract to pay the Contract price for any Goods the Company does not accept; and
vi. the Company may charge the Buyer a return fee based on the volume of Goods returned, up to 50% of the Contract price for the returned Goods (such fee to be deducted from any refund of the Contract price to the Buyer where the Contract price has already been paid or recoverable as a debt from the Buyer by the Company).
Where the type of Goods specified by the Buyer under the Contract are, at the fault of the Buyer, not fit for the purpose for which they were intended:
(a) agree that the Buyer may return the Goods to the Company:]
i. for a refund of the Contract price paid for the Goods being returned, where the Buyer has already paid the Contract price for those Goods; or
ii. without obligation to pay the Contract price for the returned Goods in the event that the Buyer has not already paid the Contract price for those Goods; provided that
iii. the Buyer bears the cost of returning such Goods to the Delivery Point; and
iv. the risk for the Goods shall remain with the Buyer until the Company has received the Goods at the Delivery Point and the Company has inspected the Goods; and
v. the Company shall not be obliged to accept any returned Goods that it reasonably considers not to be in good condition; and
vi. any Goods that are not accepted by the Company shall remain at the risk of the Buyer and, at the cost of the Buyer, will be dealt with in accordance with the Buyer's reasonable instructions; and
vii. the Buyer shall remain liable under the Contract to pay the Contract price for any Goods the Company does not accept; and
viii. the Company may charge the Buyer a return fee based on the volume of Goods returned, up to 50% of the Contract price for the returned Goods (such fee to be deducted from any refund of the Contract price to the Buyer where the Contract price has already been paid or recoverable as a debt from the Buyer by the Company).