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CONDITIONS OF BUSINESS
1 Interpretation
1.1 In these Conditions the following words have the following meanings:
‘Buyer’ the person(s), firm or company who purchases the Goods from the Company;
‘Company’ Hyde Sails Limited (Company No 1530833) whose registered office is at Haslers
Old Station Road
Loughton
Essex
IG10 4PL;
‘Contract’ any contract between the Company and the Buyer for the sale
and purchase of the Goods, incorporating these Conditions;
‘Delivery Point’ the place where delivery of the Goods is to take place under condition 4; and
‘Goods’ any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 In these Conditions references to any statute or statutory provision
shall, unless the context otherwise requires, be construed as a
reference to that statute or statutory provision as from time to time
amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine
and the neuter and to the singular include the plural and vice versa as
the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2 Application of terms
2.1 Subject to any variation under condition 2.3 the Contract will 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).
2.2 No terms or conditions endorsed upon, delivered with or contained in
the Buyer’s purchase order, confirmation of order, specification or
other document will form part of the Contract simply as a result of such
document being referred to in the Contract.
2.3 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 a duly
authorised representative 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. Nothing in this Condition will exclude or limit the Company’s
liability for fraudulent misrepresentation.
2.4 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 purchase
Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the
Company until a written confirmation of order is issued by the Company
or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into
existence until the Company despatches a written confirmation of order
to the Buyer. Any quotation is valid for a period of 30 days only from
its date, provided that the Company has not previously withdrawn it.
3 Description
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or confirmation 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 giving an approximate idea of the
Goods described in them. They will not form part of this Contract and
this is not a sale by sample.
4 Delivery
4.1 Unless otherwise agreed in writing by the Company, delivery of the
Goods shall take place at the Company’s place of business.
4.2 The Buyer will take delivery of the Goods within 7 days of the
Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are
intended to be an estimate and time for delivery shall not be made of
the essence by notice. If no dates are so specified, delivery will be
within a reasonable time.
4.4 Subject to the other provisions of these Conditions, the Company
will not be liable for any direct, indirect or consequential loss (all
three of which terms include, without limitation, pure economic loss,
loss of profits, loss of business, depletion of goodwill and like loss),
costs, damages, charges or expenses caused directly or indirectly by
any delay in the delivery of the Goods (even if caused by the Company’s
negligence), nor will any delay entitle the Buyer to terminate or
rescind the Contract unless such delay exceeds 90 days.
4.5 If for any reason the Buyer will not accept delivery of any of the
Goods when they are ready for delivery, or the Company is unable to
deliver the Goods on time because the Buyer has not provided appropriate
instructions, documents, licences or authorisations:
4.5.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods will be deemed to have been delivered; and
4.5.3 the Company may store the Goods until delivery whereupon the Buyer
will be liable for all related costs and expenses (including, without
limitation, storage and insurance).
4.6 The Buyer will provide at its expense at the Delivery Point adequate
and appropriate equipment and manual labour for loading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods of up to
10% more or less than the quantity accepted by the Company the Buyer
shall not be entitled to object to or reject the Goods or any of them by
reason of the surplus or shortfall and shall pay for such goods at the
pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each
separate instalment will be invoiced and paid for in accordance with the
provisions of the Contract.
4.9 Each instalment will be a separate Contract and no cancellation or
termination of any one Contract relating to an instalment will entitle
the Buyer to repudiate or cancel any other Contract or instalment.
5 Non-delivery
5.1 The quantity of any consignment of Goods as recorded by the Company
upon despatch 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.
5.2 The Company shall not be liable for any non-delivery of Goods (even
if caused by the Company’s negligence) unless written notice is given to
the Company within 3 days of the date when the Goods would in the
ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall 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.
6 Risk/title
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company
has received in full (in cash or cleared funds) all sums due to it in
respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 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;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured
on the Company’s behalf for their full price against all risks to the
reasonable satisfaction of the Company. On request the Buyer shall
produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 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.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.5.1 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 by 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 for the granting of an administration order in respect of
the Buyer, or any proceedings are commenced relating to the insolvency
or possible insolvency of the Buyer;
6.5.2 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/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
6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 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.
6.7 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.
6.8 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 will 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.
6.9 On termination of the Contract, howsoever caused, the Company’s (but
not the Buyer’s) rights contained in this condition 6 will remain in
effect.
7 Price
7.1 Unless set out in writing in the Contract or otherwise agreed by the
Company in writing, the price for the Goods shall be the price set out
in the Company’s price list published on the date of delivery or deemed
delivery.
7.2 The price for the Goods shall be exclusive of any value added tax
and all costs or charges in relation to packaging, loading, unloading,
carriage and insurance all of which amounts the Buyer will pay in
addition when it is due to pay for the Goods.
8 Payment
8.1 Subject to condition 8.4, unless otherwise agreed by the Company in
writing payment of the price for the Goods is due in pounds sterling on
the last working day of the month following the month in which the Goods
are delivered or deemed to be delivered.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become
due immediately upon termination of this Contract despite any other
provision.
8.5 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.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the
Contract the Buyer will 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 Bank of England, accruing on a
daily basis until payment is made, whether before or after any
judgment. The Company reserves the right to claim interest under the
Late Payment of Commercial Debts (Interest) Act 1998.
9 Quality
9.1 Where the Company is not the manufacturer of the Goods, the Company
will endeavour to transfer to the Buyer the benefit of any warranty or
guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these
Conditions) upon delivery the Goods will be of satisfactory quality
within the meaning of the Sale of Goods Act 1979.
9.3 The Company shall not be liable for a breach of the warranty in condition 9.2 unless:
9.3.1 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
9.3.2 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 place of business at the
Company’s cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of the warranty in condition 9.2 if:
9.4.1 the Buyer makes any further use of such Goods after giving such notice;
9.4.2 the defect arises because the Buyer failed to follow the Company’s
oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Goods or (if there are none)
good trade practice; or
9.4.3 the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to conditions 9.3 and 9.4, if any of the Goods do not
conform with the warranty in condition 9.2 the Company shall at its
option repair or replace such Goods (or the defective part) or refund
the price of such Goods at the pro rata Contract rate provided that, if
the Company so requests, the Buyer shall, at the Company’s expense,
return the Goods or the part of such Goods which is defective to the
Company.
9.6 If the Company complies with condition 9.5 it shall have no further
liability for a breach of the warranty in condition 9.2 in respect of
such Goods.
9.7 Any Goods replaced will belong to the Company.
10 Limitation of liability
10.1 Subject to conditions 4, 5 and 9, 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:
10.1.1 any breach of these Conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission
including negligence arising under or in connection with the Contract.
10.2 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 permitted by law, excluded
from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence;
10.3.2 under section 2(3) Consumer Protection Act 1987;
10.3.3 for any matter which it would be illegal for the company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to conditions 10.2 and 10.3:
10.4.1 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 this Contract shall be limited to the Contract price;
and
10.4.2 the Company shall not be liable to the Buyer for any pure
economic loss, loss of profit, loss of business, depletion of goodwill
or otherwise in each case whether direct, indirect or consequential, or
any claims for consequential compensation whatsoever (howsoever caused)
which arise out of or in connection with the Contract.
11 Assignment
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11.2 The Company may assign the Contract or any part of it to any person, firm or company.
12 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,
tsunami, 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 provided that, if the event in question
continues for a continuous period in excess of 120 days, the Buyer shall
be entitled to give notice in writing to the Company to terminate the
Contract.
13 Intellectual property rights
13.1 Subject to condition 13.2, as between the Company and the Buyer all
intellectual property rights in the Goods shall be owned by the Company
and the Company licenses all such rights to the Buyer free of charge
and on a non-exclusive worldwide basis to such extent as is necessary to
enable the Buyer to make reasonable use of the Goods. If the Contract
is terminated for any reason this licence will automatically terminate.
13.2 The Buyer acknowledges that where the Company does not own any
intellectual property rights in the Goods the Buyer’s use of the Goods
is conditional on the Supplier obtaining a written licence (or
sub-licence) from the relevant licensor or licensors on such terms as
will entitle the Supplier to license such rights to the Buyer.
14 General
14.1 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.
14.2 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.
14.3 Failure or delay by the Company in enforcing or partially enforcing
any provision of the Contract will not be construed as a waiver of any
of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default under,
any provision of the Contract by the Buyer will not be deemed a waiver
of any subsequent breach or default and will in no way affect the other
terms of the Contract.
14.5 The parties to this Contract do not intend that any term of this
Contract will be enforceable by virtue of the Contracts (Rights of Third
Parties) Act 1999 by any person that is not a party to it.
14.6 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.
15 Communications
15.1 All communications between the parties about this Contract must be
in writing and delivered by hand or sent by pre-paid first class post or
sent by facsimile transmission:
15.1.1 (in case of communications to the Company) to its registered
office or such changed address as shall be notified to the Buyer by the
Company; or
15.1.2 (in the case of the communications to the Buyer) to the
registered office of the addressee (if it is a company) or (in any other
case) to any address of the Buyer set out in any document which forms
part of this Contract or such other address as shall be notified to the
Company by the Buyer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, 2 days (excluding
Saturdays, Sundays and bank and public holidays) after posting
(exclusive of the day of posting);
15.2.2 if delivered by hand, on the day of delivery; or
15.2.3 if sent by facsimile transmission on a working day prior to 4.00
pm, at the time of transmission and otherwise on the next working day.
15.3 Communications addressed to the Company shall be marked for the attention of the Contracts Manager.
IF THE BUYER IS A CONSUMER THE BUYER’S STATUTORY RIGHTS ARE NOT AFFECTED
Website Terms of Use
Ownership,
1. This Site is owned by Hyde Sails.
Information
2. Information contained on this Website is provided for information
purposes only and Hyde Sails will use all reasonable endeavours to
ensure that it is accurate at the date of publication.
3. However, because of the nature of the Internet, there may be
circumstances in which errors or omissions in the information may occur
which are beyond the reasonable control of Hyde Sails. For example
unauthorised access by a third party. Consequently Hyde Sails will not
be liable for loss or damages arising, in contract, tort or otherwise,
directly or indirectly from the use of or reliance upon any information
contained in this Website.
Security
4. Hyde Sails will take all reasonable steps to ensure that any personal
information you provide is kept secure. However, because of the nature
of the Internet, and the fact that it is not a secure system, Hyde Sails
cannot and do not guarantee that personal information you provide will
not be intercepted by others. Consequently your privacy cannot be
guaranteed.
5. The Site may contain hypertext links to other websites. Separate
terms and conditions will apply to any Websites accessible via a
hypertext link from this Website. The responsibility for those web sites
is that of the parties who are identified as providing those sites and
Hyde Sails can accept no responsibility for them or their use.
6. Hyde Sails cannot warrant that the Website is free of viruses or
technical defects of any description and will not be responsible for any
technical problems arising from the use of this Website.
7. Hyde Sails reserves the right to change the content, presentation,
user facilities and availability of any part of the Website at its sole
discretion.
Copyright
8. Hyde Sails and/or (if relevant) the other providers of information on
this Website own the copyright and all other intellectual property
rights subsisting in the database accessible via the Web Site and all
material on this Website, including all the trade marks visible on the
Website.
9. You are not permitted to download, redistribute or extract any
information on this Website unless: -
9.1 such downloading, re-distributing or extraction of information is
faithfully undertaken and not misrepresentative of the original
9.2 Hyde Sails is acknowledged in a prominent position as the source of
such information; and
9.3 the use of such information is in good faith and will not in any
circumstance bring Hyde Sails directly or indirectly into any disrepute.
Applicable Law
10. Hyde Sails has established this Site in England. English law shall
govern its use all times and, in the event of a dispute, the relevant
parties shall irrevocably submit to the exclusive jurisdiction of the
English Courts.
Amendment of Terms of Use
11. Hyde Sails may amend these Terms of Use at any time and such
amendment shall apply to your use of this Website after such amendment.
Data Protection and Privacy Statement
12. All personal information you supply to Hyde Sails will be treated in
accordance with the Data Protection Act 1998 as amended subject to the
provision of Clause 4 above.
General
13. These terms and conditions apply to your use of every part of this Website.
14. Separate Terms and Conditions may govern your relationship with Hyde
Sails, for example, in respect of any contract relating to your
possible capacity as an exhibitor or visitor, and these Terms of Use
shall be regarded as supplemental or additional to such contract. If you
have any queries regarding this website and its terms of use, please
contact enquiries@hydesails.com
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