HEATHSIDE TRADING LIMITED ("we"/"our"/"us")
1.1 These Conditions cover all sales of goods ("Goods") by us and these Conditions apply to all contracts for the supply of Goods to the exclusion of all others (including, without limit, any on your order).
1.2 The entire contract for any sale of Goods (the "Agreement") shall comprise these Conditions and your Order (as defined below).
1.3 Unless otherwise specified in writing, quotations are valid for only 2 days from the date of issue.
1.4 No order is binding on us until we accept it in writing, whereupon it is the "Order". No Order may be cancelled in whole or part except with our prior written agreement.
1.5 Any samples, drawings, descriptive matter, or advertising produced by us and any descriptions or illustrations contained in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement nor have any contractual force.
2.1 Any delivery or performance dates are estimates only and you shall not be entitled to refuse delivery of Goods made outside the estimated delivery period or claim a price reduction or damages in respect of any such delivery.
2.2 Each instalment of Goods shall be a separate contract. Any default in delivery of an instalment shall not entitle you to cancel the remainder of the Agreement or treat it as repudiated.
2.3 Delivery will be made to the address stated in your Order. Any costs incurred to deliver the Goods elsewhere may be charged to you, as may any costs we incur by virtue of your failure to accept delivery of the Goods.
2.4 Delivery of the Goods shall be deemed to have taken place on the earlier of (i) the time they are actually delivered to your premises, (ii) the time you collect them, and (iii) the time they come under your control.
2.5 You specifically agree to tolerate up to a 10% variance in the volume of Goods ordered and the volume of Goods delivered or collected.
2.6 Any unreturned pallets will be charged at our standard price.
3 Risk and Title
3.1 Risk in the Goods passes to you on collection or on delivery to you or your carrier (as the case may be). Ownership of the Goods shall pass to you when you pay all monies owing to us.
3.2 We may sue you for the Price (as defined in Condition 4.1 below) even though ownership has not passed. Until such time as ownership passes to you, you must store the Goods safely, securely and separately from your own goods, clearly marked as our property.
3.3 You may use or re-sell (at full market value) the Goods in the ordinary course of your business prior to the passing of title provided that such use and/or re-sale is of our property, on your behalf as principal.
3.4 You are deemed to have re-sold and/or used the Goods in the order in which they were invoiced by us. If you are at any time late in making payment of any sum due to us or in breach of any Agreement we shall be entitled to repossess those Goods to which title has not passed to you.
3.5 You grant us the right to enter upon any premises where the Goods are stored to effect such repossession and/or at any time to inspect the Goods.
3.6 You may not pledge or in any way charge for any indebtedness any Goods which are our property. If you do so, you shall be in material irremediable breach of all Agreements and all sums owing to us from you shall become immediately due and payable.
4 Offers, Prices and Payment
4.1 The price for the Goods shall be the price agreed at the date of our acceptance of your Order ("Price") on an ex-works basis and you shall be additionally liable to pay (i) our charges for transport, packaging and insurance; and (ii) any applicable value added tax.
4.2 Goods must be paid for at the time of placing the Order. Goods bought on credit must be paid in full 30 days from the date of our invoice. Time for payment shall be of the essence and all payments shall be made in the currency stated on the invoice.
4.3 If at any time your credit worthiness becomes unsatisfactory (in our sole opinion) or you exceed your credit limit, we may:
4.3.1 require advance cash payment for any future deliveries;
4.3.2 require other security satisfactory to us;
4.3.3 withhold any delivery or refuse collection; and/or
4.3.4 terminate the Agreement with immediate effect.
4.4 Unless otherwise agreed in writing by us, all amounts due shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.5 If you default on any payment under any Agreement or we terminate an Agreement in accordance with Condition 9, all payments due under all Agreements between us shall become payable immediately and we may:
4.5.1 charge you interest at the maximum rate permissible by law; (a) calculated (on a daily basis) from the due date until payment; and (b) before and after any judgment (unless a court orders otherwise);
4.5.2 claim fixed sum compensation from you as permitted by law to cover our credit control overhead costs; and
4.5.3 recover (under Condition 4.6) the cost of taking legal action to make you pay.
4.6 You shall indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly including financing costs, legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due to us if any) following any breach by you of any of your obligations under any Agreement.
5 Warranties and Returns
5.1 To the extent that the benefit of any warranties made by the manufacturer or previous seller of the Goods to us can be assigned to you, we shall, if requested by you, assign them to you.
5.2 Goods are not sold with any warranty or guarantee from us whatsoever other than those which we are not entitled to exclude by law. All warranties conditions and/or terms implied by law are excluded to the fullest extent permitted by law.
5.3 Upon delivery or collection you will inspect the package/packaging. Where the package/packaging is/or appears to be damaged in any way then you must
bring this to the attention of the deliverer. Where items are signed for on delivery or collection you must mark “package damaged” when signing for the item.
5.4 Immediately upon receipt you will properly inspect the Goods and shall notify us in writing within 3 days of delivery or collection if the Goods are damaged or do not comply with the Agreement. If you fail to do so you shall be deemed to have accepted the Goods.
5.5 Where a claim of defect or damage is made, after contacting us in accordance with Condition 5.4 you are under a duty to take care of the Goods until they have been returned to us. Once we have received the returned Goods and if the Goods are defective then we will either provide a replacement or a credit note. However, any failure to follow the requirements and procedures detailed in Condition 5 will be considered a breach by you and we will not provide a replacement or a credit note.
6.1 You shall be responsible for compliance with all laws and regulations applicable to the storage, use, handling, installation, registration, labelling and resale of all Goods as from their delivery or collection.
6.2 You warrant that any exportation of our Goods will be in strict conformance with applicable law, including relevant export control regulations.
6.3 You confirm that you will not use such Goods or facilitate their use by third parties in violation of such regulations, manufacturer’s instructions or any restrictions set out in the Order.
7 Force Majeure
We shall not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of our obligations under it if such delay or failure results from an event, circumstance or cause beyond our reasonable control.
8 Limitation of Liability
8.1 In no event will we be liable for loss of profits, business, revenue, goodwill or anticipated savings, damage to reputation or any special indirect or consequential loss, whether in contract, tort (including, without limit, negligence) or otherwise and regardless of whether we knew or had reason to know of the possibility of the same.
8.2 Except as follows, our liability to you in respect of all causes of action arising in contract, tort (including, without limit, negligence) or otherwise under, in connection with or, arising out of, the Agreement shall not exceed the aggregate of the Price of the Goods sold or provided under the relevant Agreement.
8.3 We do not limit our liability for fraudulent misrepresentation, for death or personal injury caused by our negligence or for any other liability the exclusion or limitation of which is prohibited by English law.
9.1 Any Agreement and any performance pursuant to it may be terminated by a party immediately if the other party (a) is the subject of bankruptcy, insolvency or similar proceedings or (b) defaults in its material obligations under the Agreement and, if remediable, such default is not cured within 30 days from the date of sending of a default notice by registered letter.
9.2 We also reserve the right to suspend supply of Goods if we have a right to terminate under this clause.
10.1 Each party's rights and remedies are cumulative and no failure or delay by either party in enforcing its rights or remedies shall be construed as a waiver of such rights or remedies unless stated by the waiving party in writing to be so, nor shall any partial exercise of a right or remedy preclude or limit the further exercise of that or any other right or remedy.
10.2 The invalidity, unenforceability or illegality of any part of an Agreement shall not affect the remainder of it which shall remain in full force and effect.
10.3 The Agreement sets out the entire agreement between the parties and may not be varied except by the written agreement of the parties.
10.4 You acknowledge that in entering into each Agreement, you did not reply upon any matters that are not set out in it.
10.5 No Agreement may be assigned in whole or in part without our prior written consent.
10.6 A person who is not a party to an Agreement shall not derive the right to enforce any of the terms of that Agreement by virtue of the Contract (Rights of Third Parties) Act 1999 or otherwise.
11 Anti-bribery and Corruption
11.1 You shall (i) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, (ii) not bribe, promise or give financial advantage to another person (including a Foreign Public Official) whether directly or indirectly and must not receive any bribe, promise or other financial advantage from a third party which in each case may be designed or intended to induce or reward the improper performance of a function or activity, (iii) promptly report to us any request or demand for any undue financial or other advantage of any kind received by you in connection with the performance of any Agreement and, at our request, confirm in writing that you have complied with this Condition 11.1 and provide such supporting evidence of compliance as we may reasonably request.
11.2 Breach of this Condition 11 shall be treated as a material breach of the Agreement for the purposes of Condition 9.1.
12 Governing Law
12.1 All Agreements shall be governed by English law and both you and we submit to the exclusive jurisdiction of the English courts (including for any noncontractual claims).
12.2 For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to any Agreement. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with these Conditions, these Conditions shall prevail.
12.3 Nothing in this Condition 11 shall limit our right to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude us from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.