Hempstead & Johnson Ltd Terms & Conditions of Business
In these conditions of sale “The Company” shall mean HEMPSTEAD AND JOHNSON LTD and its successors, assignees, subcontractors and agents and any subsidiary, holding or associated Company; “The Buyer” shall mean any person, or persons firm or firms, Company or Companies, authority or authorities who shall order or buy the Goods or Services of the Company and shall include their successors, executors and personal representatives, “the Goods” shall mean the process equipment, and/or materials supplied or sold by the Company in terms of any individual contract (including all replacements and renewals thereof and all accessories and additions thereto whether added or made before or after the date of the relative order) and includes components, parts and equipment mentioned (coated, blasted of otherwise treated in any manner) in the course of the services (as hereinafter denied) provided by the Company for the Buyer; services shall mean the manufacture and supply as carried out by the Company for and on behalf of the Buyer (at the Buyer’s request in accordance with these terms and conditions) of all kinds of and parts and equipment, “the contract” shall mean the contract for the sale or supply of Goods and services by the Company to the Buyer and “consequential” shall include, but is not limited to, loss of or reduced profit, loss or reduced production, loss of materials or production, increase costs of production or loss of contract.
No quotation by the Company shall constitute an offer. No order placed with the Company shall be binding on the Company or deemed to be accepted by the Company unless and until a written and unqualified acknowledgement and acceptance of such order is issued to the Buyer by the Company. The Company shall not be bound by any terms or conditions set out in the Buyer’s order and these conditions of sale shall supersede and prevail over any order terms or conditions stipulated or referred to by the Buyer. No previous correspondence, writings, telexes, telegrams or verbal communications between the Buyer and the Company regarding the Goods and/or Services shall form any part of or be incorporated into the contract.
(a)The prices set out (in the Company’s quotation) are based upon the prices and costs of raw materials, labour, transport, overhead expenses etc, currently at the date of quotation but may be varied by the Company to take account of any increase in any of such prices or costs which may incur at any time before the contract is completed. Any alterations by the Buyer in design, quantities or speculation and any suspension of work following on the Buyer’s instructions or any failure by the Buyer to give timeous instructions will give rise to adjustments of the price if the company’s costs are thereby increased: in such case the price(s) to be paid by the Buyer shall instead of the price(s) stated in the Company’s quotation be the price(s) ruling at the date of delivery of the Goods. Provided, however, that where the words “fixed price” appear in relation to any price quoted the Goods and/or Services supplied will be charged at such price which shall not be subject to variation (b) Quotations are based on the Buyers specifications as given to the Company and the Buyer shall be liable to pay for all the Goods and/or Services delivered or rendered by the company as the case may be in accordance with such specifications notwithstanding that the buyer has provided erroneous information within its specifications. (c) Quotations of price will normally be given by the Company in pounds Sterling, but in the event of a quotation being given in a currency other than Sterling and the exchange rate on the date on which payment falls due being different than that on (a) the date on this quotation (b) the date of acceptance of the Buyer’s order, whichever is the earlier, then the company shall have the right to make such adjustments as it may reasonably consider necessary to take account of such difference. All prices quoted a strictly net. In addition to the quoted price the buyer shall pay (1) delivery charges (11) Value Added Tax, where applicable and (111) the cost to the Company of carrying out any special test, examination or inspection requested by the Buyer.
All packing materials are non-returnable unless otherwise specified in the Company’s quotation.
5. ACCEPTANCE OF DELIVERY
The Buyer shall accept delivery of Goods within a period of seven days of being notified by the Company that the Goods are available for delivery. If the Buyer shall fail to accept delivery as aforesaid the Company shall be entitled: –
(a) To charge interest to the Buyer at a rate of 4% per annum above The Royal Bank of Scotland plc base lending rate for the time (such interest being calculated daily and charged monthly by the company and payable by the Buyer on demand by the Company) and
(b) To make a storage charge against the buyer at a rate of 10% per annum on all sums due to the Company in terms of the contract and for the time being unpaid in respect of the period from the expiration of the said period of seven days until delivery of the goods is accepted by the Buyer.
6. DELIVERY AND THE PASSING OF RISK
The Company shall deliver the Goods to the Buyer at such place in the United Kingdom as the buyer directs; risk of loss, damage or destruction of all the Goods shall pass to the Buyer immediately after the Goods leave the Company’s premises. An Advance Note and Despatch Note shall be sent to the Buyer on the same day Goods are despatched.
7. DELAY IN DELIVERY OR COMPLETION
Any delivery and/or date given by the company to the buyer is the company’s approximate business estimate on the date of which the Goods will be delivered to the Buyer and/or Services Completed and the company will make every responsible endeavour to meet such delivery date. Delivery dates, however, are not subject to condition, guarantee, warranty or representations and, unless otherwise agreed in writing between the Company and the Buyer, time shall not be of the essence with regard to delivery and/or completion in the contract and there shall be no liability (in contract or otherwise howsoever arising) upon the Company in respect of any loss or damage (including consequential loss or damage) incurred by the Buyer arising in any delay in delivery of goods, nor shall the buyer be entitled to refuse to accept delivery or to repudiate or cancel the contract as a result in any delay in delivery of the Goods. Late delivery shall not affect the obligation of the buyer to pay the price.
Unless otherwise agreed in writing between the Company and the buyer payment of all sums due to the Company shall be made within 30 days of the date of despatch of the Goods and time shall, in respect of payment, be a material condition in and of the essence of the contract. In respect of any of the Goods to be delivered to the Buyer or its nominees at an address overseas, and unless otherwise agreed in writing,, payment of the price and any additional overseas and/or transportation charges, insurance, storage, standing charges or other additional costs shall be paid by the Buyer prior to the despatch of goods by the Company by means of irrevocable Letter of Credit opened with a bank approved by the Company or by such other means as may be agreed in writing between the buyer and the Company. The Company shall have the right to charge interest (which will accrue from day to day) on all sums which may at any time be overdue for payment in terms of the contract (from the time such sums become due for payment until such sums have been paid to the Company in full) at the rate of 4% per annum above The Royal Bank of Scotland plc base rate from time to time, such interest shall be calculated daily and charged monthly by the Company and be paid by the buyer on demand by the Company.
9. PASSING OF PROPERTY
(a) Unless otherwise agreed in writing between the Company and the buyer property and title in the goods shall not pass to the Buyer until the whole price therefore and all other sums due in terms of the contract for the sale or supply of the goods has been received by the Company. Where the goods to be supplied in terms of the contract are delivered in instalments, this clause will apply to each instalment as if it formed the subject matter of a separate and independent contract. Until the whole price has been paid the buyer will hold and store the goods (in so far as the goods or any of them have not sold by it) as agent for the Company and in a manner that clearly distinguishes them from other goods of the buyer and indicates that they are in fact owned by the Company and not by the buyer, and
(b) The buyer shall not dispose of any individual consignment of or delivery of the goods save as agent of the Company until the whole price of therefore and all other sums due in terms of the contract have been received by the Company and, in the event of any sale or disposal by the buyer, the buyer will ensure that these terms and conditions of business are expressly incorporated into the relative contract with the party buying or otherwise acquiring such of the goods from the buyer as aforesaid. The buyer will hold the proceeds of such sale or disposal as agents for the Company in a separate fund marked as being held for the sole benefit of the Company and will not be entitled to intromit with such funds as its own.
(c) In the event that: –
1 On the expiry of any credit period the Company shall not have received payment in full for the Goods, or
2 A receiver is appointed over the whole or any part of the assets of the Buyer or
3 A resolution is passed, or a petition is present for the winding up of the Buyer, or
4 The Buyer commits an act of bankruptcy or become notour bankrupt. The Company shall be entitled to require the Buyer at the Buyer’s own expense to return to the Company such of the Goods as have not them been paid for in full and should the Buyer fail to do so the Company is irrevocably authorised by the Buyer without notice to enter any premises occupied by the Buyer for the purpose of collecting and removing such of the Goods and the Buyer shall be responsible for (and shall, on demand, reimburse the Company with ) all the Company’s costs and expenses of and in connection with such collection and removal. Sub-clauses (a), (b) and (c) above shall each be construed to receive effect as a separate clause of these conditions.
10. TECHNICAL DATA
All information, details, measurements, descriptions and illustrations contained in the Company’s catalogues and sales manuals, and all drawing, descriptive statements, weights, dimensions, power consumptions, price lists and advertisements are intended to be and may be construed only as of a generally informative nature and no such information, details, measurements, descriptions and illustrations shall form any part of or be incorporated in any way to the contract.
11. INDUSTRIAL PROPERTY RIGHTS
(a) The Company shall indemnify the Buyer against any claim or infringement of industrial property rights arising from the use or sale by the Company of the Goods, provided that any damages payable to the Company will exclude damages of a consequential nature and that the liability of the Company shall be limited to the payment of a reasonable royalty to the owner of such industrial property rights. This indemnity shall not apply to any infringement caused by the Company having used or followed any design or instructions furnished or given by the Buyer or to any use of the Goods in any manner or for any purpose or in any country which shall have been specifically prohibited by the Company or to any infringement which is due to use of the Goods within or in association or combination with any other equipment not supplied by the Company
(b) The Buyer shall give the Company the earliest possible written or telexed notice if any claim made or action threatened or brought against him in relation to alleged infringement of any industrial property rights and shall (if the Company so requests) permit the Company at the Company’s own expense to conduct any ensuing litigation and/or negotiations in relation to defence or settlement of such claim.
(c) Any design, specification or instruction furnished or given by or on behalf of the Buyer shall not be such as may cause the Company to infringe any industrial property rights vested in any third party
(d) For the purpose of this clause, “industrial property rights” shall mean patents, registered designs, registered copyrights, and trademarks.
12. COMPANY’S LIABILITY FOR DEFECTS
Where any of the Goods supplied by the Company to the Buyer to be defective in material or workmanship or not to conform to the specification set out in the Buyer’s order the Buyer shall notify the Company of such defect within seven days of the date despatch by the Company of the goods and the Company to effect such repair as it considers necessary to restore the Goods or refund to the Buyer the purchase price of the Goods, but in no circumstances whatsoever, subject to any statutory provision from time to time in force shall be the liability of the Company in connection with Goods exceed the price paid or agree to be paid by the Buyer, therefore. The liability of the Company under this clause is conditional upon the Buyer
(a) adhering strictly to the terms of payment provided for in the contract; (11) bringing the defect in the Goods to the attention of the Company within the said period of seven days and (111) not attempting to repair or allowing anyone not previously approved by the Company to repair any part or parts of the Goods. There shall be no liability on the Company in terms of this clause for any defects which in the opinion of the Company occur as a result of: –
1 Misuse of Goods or negligence on the part of any person other than the Company
2 Loss or theft of the Goods or any part of them
3 Damage from any cause other than negligence by the Company or the Company’s personnel
4 Unauthorised modification, alteration, or repair of any of the Goods: or
5 Failure by the Buyer to comply with its duties hereunder.
(b) Except as provided in section 16 of The Unfair Contract Term Act 1977 (liability for death or personal injury resulting from breach of duty) the Company accepts no responsibility in any circumstances for any direct, indirect or consequential loss or damage, however arising, which the Buyer may sustain in connection with the Goods under the contract (c) Save as otherwise provided by these Conditions of Sale all conditions and warranties express or implied, statutory or otherwise and, except as provided in section 16 of the Unfair Contract Terms Act 1977 (liability for death or personal injury resulting from breach of duty) all other obligations and liabilities whatsoever of the Company whether in contract or delict or otherwise are hereby excluded and the Company shall not be liable to the Buyer for any direct, special, indirect or consequential loss or damages howsoever arising from the contract.
13. SUSPENSION OR CANCELLATION OF DELIVERIES
If the Buyer shall fail to make the payment to the Company within 30Days of the due date of any sum payable under the contract, or shall be declared notour bankrupt or shall grant a Trust Deed for behoof of his creditors, or being a body corporate shall have a receiver and a personal liquidator or an official liquidator appointed to it or if any order shall be made or any resolution passed for winding up the Buyer, then the Company may, without prejudice to its other rights, either suspend or cancel further deliveries of the Goods and charge the Buyer in respect of any loss sustained thereby. If the Buyer cancels his order the Company shall be entitled to recover all costs accrued and/or incurred by the Company up to the date on which the Company up to the date on which the Company receives notice of cancellation.
14. FORCE MAJEURE
(a) If the performance of the contract shall be delayed by any circumstances of conditions beyond the control of the Company including (but without prejudice to the generality of the foregoing) any war, industrial dispute, strike, lockout, riot, malicious damage, fire, flood, Act of God, accident, non-availability, or shortage of material or labour failure by any sub-contractor or supplier to perform, failure of production equipment, any statute, rule, order, regulation of requisition made or issued by any government department, local or other duly authority, then the Company shall have the right to suspend further performance of the contract until such time as the cause for delay shall no longer be present;
(b) If the performance of the contract by the Company shall be prevented by any such circumstances or conditions beyond the control of the Company, then the Company shall have the right to de discharged from further performance of a liability under the contract. If the Company exercises such right the Buyer shall thereupon pay all sums due in terms of the contract
less a reasonable allowance for such part of the contract as has not then been performed by the Company.
15. RULING LAW
The contract shall be governed by and construed in all respects in accordance with the laws of England.
16. SEPARATE AND SEVERABLE
Each clause and sub-clause in these Conditions of Sale is separate severable and enforceable accordingly.