Terms & Conditions For The Sale Of Goods
These Conditions are the only Terms and Conditions of sale pursuant to which we, Hart & Wilcox Limited, will sell, hire and/or supply goods and/or services to you. Variations in these Conditions are not binding unless agreed in writing. These Conditions shall govern the Contract to the exclusion of any other terms.
In these Conditions: ‘GOODS’ means the goods (including any instalment of the goods or any parts for them) which we are to supply in accordance with these Conditions; ‘SERVICES’ means the services which we are to supply in accordance with these Conditions; ‘CONTRACT’ means the contract for the purchase and sale of the Goods and/or Services; ‘PRICE’ means the price of the Goods and/or Services as set out in clause 3.3.; headings are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 We shall sell and you shall purchase the Goods and/or Services in accordance with our written estimate which is accepted by you or any order by you which is accepted by us, subject in either case to these Conditions.
2.2 Any typographical, clerical or other error or omission in any of our sales literature, estimates, price lists, acceptance of offer, invoices or other document or information shall be subject to correction without any liability on our part.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by you shall be deemed to be accepted by us unless and until confirmed in writing by our authorised representative.
3.2 You shall be responsible for ensuring the accuracy of the terms of any agreed estimate or order (including any applicable specification) and for giving us any necessary information relating to the Goods and/or Services within a sufficient time to enable us to perform the Contract in accordance with its terms.
3.3 The price, quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in our estimate (if accepted by you) or your order (if accepted by us), subject, in the case of the Price, to variation pursuant to clause 4.
3.4 We do not guarantee an exact match to previous print or colour samples. You must provide guides to ensure close matching. Unless otherwise agreed in writing the colour balance shall be at our discretion.
3.5 You warrant that the intellectual property rights of a third party will not be infringed by us in connection with any specification, design or reproduction material submitted by you and you shall indemnify us against all loss, damages, costs and expenses suffered or incurred by us in connection with any claim for infringement of any intellectual property rights of any other person which results from our use of your specification, design or reproduction material.
3.6 We reserve the right to make any changes in any specification or design which are required to conform with any venue requirements or any applicable statutory or EC requirements.
3.7 No estimate or order which has been agreed by us may be cancelled by you except with our agreement in writing and on terms that you shall indemnify us in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of cancellation.
3.8 Any materials you have given to us (including originals, artwork, samples and film accepted for processing) remain at your risk and, while every reasonable care will be taken with them, our responsibility for any loss or damage thereto is limited to the lower of current retail price, cost to repair or replacement value.
4.1Estimates are valid for 30 days only or until earlier acceptance by you, after which time they may be altered by us without giving notice to you.
4.2We reserve the right, by giving notice to you at any time before delivery, to increase the Price to reflect any increase in our cost which is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications requested by you, or any delay caused by your instructions or your failure to give us adequate information or instructions.
4.3 All Prices are given on an ex works basis, and where we agree to deliver the Goods otherwise than at your premises, you shall be liable to pay our charges for transport, packaging and insurance.
4.4 All Prices are given exclusive of any applicable value added tax, which you shall be additionally liable to pay to us.
5. TERMS OF PAYMENT
5.1In the case of exhibitions, conferences and any other face to face events, we shall be entitled to invoice you at the time the Contract is made, and the Price shall be due and paid by you as follows: 50% on order or acceptance of estimate; 35% one week prior to the First Day of the Event; 15% 30 days after the First Day of the Event. [The First Day of the Event shall mean the day which you advised us on placing your order or accepting our estimate would be the first day of the event, notwithstanding any delay or cancellation.]
5.2In the case of print and design work, we shall be entitled to invoice you on completion of the design, for design work, and from time to time, upon completion of production of the Goods or any portion thereof. These invoices shall be due for payment within 30 days of issue.
5.3 In the case of hired goods, we shall invoice you when the Contract is made and such invoices shall be due forthwith on issue.
5.4 All invoices shall be paid without deduction.
5.5 We shall be entitled to recover the Price notwithstanding that delivery may not have taken place and the property in the Goods has not passed to you. The time of payment of the Price shall be of the essence of the Contract.
5.6 If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to: cancel the contract or suspend any further deliveries to you; appropriate any payment made by you to any goods supplied under any contract between us, as we may think fit (notwithstanding any purported appropriation by you); and charge you interest (both before and after any judgment) on the amount unpaid, at the rate of 5% per cent per annum above
HSBC Bank plc base rate from time to time, until payment in full is made.
6. THIRD PARTY GOODS AND SERVICES
6.1You shall be ultimately responsible for the cost of any associated third party goods or services required for the delivery of the Goods and/or Services to you whether these third party goods or services are ordered directly by you, or ordered by us at your request (Third Party Costs).
6.2We shall invoice you for all Third Party Costs incurred by us and such invoices shall be payable in accordance with clause 5 of these Conditions. All Third Party Costs paid for by us will be subject to a 10% handling fee.
6.3 You shall indemnify us in full against (and pay on demand) all liabilities, costs, expenses, damages and losses (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim brought against us in respect of Third Party Costs.
7.1Delivery of the Goods shall be made by you collecting the Goods at our premises at any time after we have notified you that the Goods are ready for collection or, if some other place for delivery is agreed, by our delivering the Goods to that place.
7.2Any dates quoted for delivery of the Goods are approximate only and we shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by us in advance of the quoted delivery date.
7.3 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with these Conditions or any claim by you in respect of any one or more instalments shall not entitle you to treat the Contract as a whole as repudiated.
7.4 If we fail to deliver the Goods and/or provide the Services for any reason other than any cause beyond our reasonable control or your fault, our liability shall be limited to the excess (if any) of the cost to you (in the cheapest available market) of similar Goods and/or Services to replace those not delivered or provided over their Price.
7.5 If you fail to take delivery of the Goods or fail to give us adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy, we may store the Goods until actual delivery and charge you for the reasonable costs (including insurance) of storage, or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to or charge you for the excess over, or for any shortfall below, the Price as appropriate.
8. RISK AND PROPERTY
8.1 Risk of damage to or loss of the Goods shall pass to you immediately on delivery to you or into custody on your behalf.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to you until we have received in cash or cleared funds payment in full of the price of the Goods and all other Goods and/or Services agreed to be sold by us to you for which payment is then due.
8.3 Until such time as the property in the Goods passes to you, you shall hold the Goods as our fiduciary agent and bailee, shall keep the Goods separate from any of yours and third parties and properly stored, protected and insured and identified as our property, and we shall be entitled at any time to require you to deliver up the Goods to us and if you fail to do so forthwith to enter upon any of your premises or any third party where the Goods are stored and repossess the Goods.
8.4 You shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain our property but if you do so all monies owing by you to us shall (without prejudice to any other right or remedy) forthwith become due and payable.
9. WARRANTIES AND LIABILITY
9.1Subject to the Conditions set out below we warrant that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship, in the case of Goods supplied in connection with a particular exhibition or event, for the duration of such exhibition or event and, in the case of all other Goods, which appear in the period of six months from the date of delivery.
9.2We shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification supplied by you or in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, improper storage or use, failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the Goods without our approval or if the total Price has not been paid by the due date for payment.
9.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, Conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4 Where the Goods are sold by us under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the buyer are not affected by these Conditions.
9.5 Any claim by you based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by you) be notified to us in writing within 2 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and you do not notify us accordingly, you shall not be entitled to reject the Goods and we shall have no liability for such defect or failure, and you shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
9.6 In the case of any valid claim notified to us in accordance with these Conditions, we shall be entitled to replace the Goods (or the part in question) free of charge or, at our sole discretion, refund to you the price of the Goods (or a proportionate part of the price), but we shall have no further liability to you.
9.7 Except in respect of death or personal injury caused by our negligence, our liability to you for any loss or damage (including without limitation, costs, expenses and consequential losses) shall be limited to such part of the Price as has been received by us.
9.8 We shall not be liable to you or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Goods and/or Services, if the delay or failure was due to any cause beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control: Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
10. SUPPLY BY WAY OF HIRE
The following additional Conditions shall apply to Goods hired:
10.1 The period of hire shall be the period agreed between us and commencing on the agreed date or, if later, the date when the Goods are ready for delivery and terminating on the date when the same are returned to us at Concept House, Tendring Park, Essex or the hiring is otherwise terminated as provided in clause 10.3 or 11 hereof but without prejudice to our rights and liabilities arising prior to termination.
10.2During the continuance of the hiring you shall:
10.2.1 keep the Goods in good and substantial repair and condition (fair wear and tear only excepted) and without prejudice to the generality of the foregoing you shall not use the Goods for any unsuitable purpose;
10.2.2 indemnify us against loss of or damage to the Goods or any part thereof from whatever cause arising and whether or not such loss or damage results from your negligence;
10.2.3 punctually pay for all repairs to or treatment of the Goods and keep the same free from any distress execution or other legal process;
10.2.4 keep the Goods insured to their full replacement value with full comprehensive cover with insurers to be approved by us and, in the event of any claim, shall apply any insurance money as follows at our option: (a) in making good the damage; or (b) in replacing the Goods by other similar goods to which the terms of this agreement shall apply; or (c) in compensating us for all loss which we may suffer. And any deficiency shall be made up by you on demand. If you fail to obtain such insurance, then we shall be entitled to do so at your cost and expense.
10.3 The hiring shall terminate automatically at any time if you are in breach of any of these Conditions including late payment in which case you shall no longer in possession of the Goods with our consent and you shall forthwith return the Goods at your risk and expense to us at Concept House, Tendring Park, Essex in good condition or we may without notice retake possession of the Goods and for that purpose enter upon any land or premises on or in which the Goods or any of them are or are believed by us to be situated.
10.4 Where the Goods are lost stolen, damaged or destroyed you shall immediately notify us and shall forthwith pay to us by way of compensation the full retail price.
10.5 You shall indemnify us against all claims, proceedings, costs and expenses whatsoever (including legal costs on a full indemnity basis) arising in connection with your hiring of the Goods.
10.6 During the hiring the Goods shall remain our property and nothing contained in these Conditions shall confer or be deemed to confer any interest in the Goods on you.
11. INSOLVENCY OF BUYER
If you make any voluntary arrangement with your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets, or you cease, or threaten to cease, to carry on business, or we reasonably apprehend that any of the events mentioned above is about to occur in relation to you then, without prejudice to any other right or remedy available to us, we shall be entitled to cancel the Contract or suspend any further deliveries without any liability to you, and if the Goods have been delivered and/or the Services performed but not paid for the Price shall become immediately due and payable not-withstanding any previous agreement or arrangement to the contrary.
12. EXPORT TERMS
You 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.
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.2 No waiver by us of any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 The Contract shall be governed by the laws of England.