GENERAL TERMS AND CONDITIONS FOR SALES, DELIVERY AND PAYMENT
- DEFINITIONS
1.1 In these Terms the following expressions will have the following meanings: “Company” HARVIE TYRES Limited (Company Number 5221967) whose registered office is at c/o Rema Tip Top Holdings UK Limited, Westland Square, Leeds, LS11 5XS, England; “Conditions” the terms and conditions set out in this document together with any special terms specifically agreed in writing between the Customer and the Company to amend or supplement the terms and conditions set out in this document; “Contract” the contract between the Company and the Customer for the sale and purchase of the Goods and/or Services formed in accordance with Condition 2; “Customer” the person(s), firm or company (whether acting as agent or not) whose order for the Goods and/or Services is accepted by the Company and where such person(s), firm or company is acting as agent the term “Customer” shall be deemed to include the principal of such agent; “Goods” any product or goods which the Company supplies to the Customer (including any part of them) under a Contract; “Services” the services, supplied by the Company to the Customer, as set out in the Service Specification; “Service Specification” the description or specification for the Services provided by the Company to the Customer.
1.2 The Customer’s attention is specifically drawn to Conditions 9 (Warranty) and 12 (Limitation of Liability).
2. FORMATION
2.1 Subject to any variation under Condition 14.6, these Conditions apply to the Contract to the exclusion of any and all other terms and all previous oral or written representations, including any terms that the Customer seeks to impose or purports to incorporate under any purchase order, order confirmation or similar document, or which are implied by law, trade custom, practice or course of dealing. Acceptance of delivery of the Goods will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
2.2 Each order for Goods and Services will be deemed to be an offer by the Customer to purchase Goods and Services upon these Conditions. The Contract is formed when the order is accepted by the Company in writing, via email, online system acknowledgment, or electronic data interchange, as applicable.
- QUOTATIONS AND ORDERS
3.1 Any quotation given by the Company shall not constitute an offer to the Customer and is only valid for the period stated on the quotation or, if no period is stated, a period of 30 days from its date of issue.
3.2 The Company reserves the right to: (a) revise quoted prices in the event of any changes in the Company’s costs or where the Company’s quoted prices are inaccurate owning to accidental error or omission on the Company’s behalf affecting the price or its calculation; and (b) increase the quoted price by an amount equal to the amount of any additional costs, charges or expenses incurred by the Company as a direct or indirect consequence of any additional or incorrect instruction given by the Customer in relation to an order.
- SPECIFICATION AND QUANTITY VARIATIONS
4.1 Any samples, drawings, descriptive matter or 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 or Services described in them. They shall not form part of the Contract or have any contractual force.
4.2 All Goods will be supplied within reasonable limits of dimensions. If special accuracy is required in relation to the Goods or Services, the Customer must state specifically in writing the maximum and minimum limits. The Company accepts no responsibility for the accuracy of information or drawings supplied by the Customer.
4.3 The Company reserves the right to amend the specification of any Goods if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Goods.
- PRICE AND PAYMENT
5.1 The price for Goods shall be the price set out in the order or, if no price is quoted, the price set out in the Company's published price list as at the date of delivery.
5.2 The Company reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Company that is due to: (a)any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b)any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods specification; or (c)any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Goods.
5.3 Price is exclusive of all costs and charges of packaging, insurance, transport of the Goods. The Company reserves the right to apply a carriage and administration charge for the delivery of Goods.
5.4 The charges for Services shall be calculated on a time and materials basis and calculated in accordance with the Company’s daily fee rates, as set out in the order or in its current price list at the date of the Contract.
5.5 Time for payment is of the essence.
5.6 In respect of Goods, the Company shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Customer on completion of the Services or as otherwise set out in an order.
5.7 The Customer shall pay each invoice submitted by the Company:
(a)as specified in an order or if no date is specified within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Company and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Company or if agreed by the Company in full cash.
5.8 Unless otherwise stated, all amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
5.9 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under Condition 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Condition 5.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- DELIVERY
6.1 The Company shall deliver the Goods to the location set out in the order or such other location as the parties may agree at any time after the Company notifies the Customer that the Goods are ready.
6.2 If Goods are delivered by the Company’s own transport or by a carrier on behalf of the Company, delivery will be deemed completed on completion of loading the Goods to the relevant transport or carrier. In all other circumstances delivery is deemed completed upon their transfer to a carrier named by the Customer or two days after the Company notifies the Customer that the Goods are available for collection whichever is the earlier.
6.3 The Company may deliver the Goods in separate instalments, or via back or scheduled order, unless otherwise agreed. When delivering by instalments is specified or required for stock reasons, each delivery shall constitute a separate contract and the failure of any one or more deliveries shall not be deemed to be a repudiation of the contract.
6.4 If the Customer fails to give to the Company instructions as to delivery when so requested or refuses to accept delivery, the Company shall be entitled to store at the risk of the Customer any Goods which the Customer refuses or of which it fails to take delivery and the Customer shall pay all costs of such storage and any additional costs (including insurance) in addition to the price incurred as a result of such refusal or failure. Refusal by the Customer to take delivery will relieve the Company from the obligation to make further deliveries without prejudice to the Company’s right to recover damages for such refusal. The Company shall be entitled after the expiration of 28 days from the date on which the price became payable to dispose of the Goods in such manner as the Company may determine.
6.5 All delivery dates and timeframes are estimates only and cannot be guaranteed, and the time of delivery is not of the essence. The Company shall not be liable for any loss or damage whatsoever, or howsoever arising out of the failure to meet any period or date of delivery specified in any quotation or otherwise.
6.6 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
6.7 The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- RISK AND TITLE
7.1 The risk in the Goods shall pass to the Customer on completion of delivery. For the avoidance of doubt this includes the transfer of all risk in relation to the safe storage and disposal of the Goods on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of: (a) the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and (b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Condition 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall: (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company's behalf from the date of delivery; (d) notify the Company immediately if it becomes subject to any of the events listed in Condition 13.1; and (e) give the Company such information in relation to or such access to inspect the Goods as it may reasonably require.
7.4 Subject to Condition 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Company's agent; and
(b)title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
7.5 At any time before title to the Goods passes to the Customer, the Company may: (a) by notice in writing, terminate the Customer’s right under Condition 7.2 to resell the Goods or use them in the ordinary course of its business; and (b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- EXPORT SALES
8.1 [In the case of export sales the price of the Goods and Services shall if required by the Company be secured by an irrevocable letter of credit satisfactory to the Company established by the Customer in favour of the Company immediately upon receipt of the Company’s acknowledgement of order and confirmed by a United Kingdom bank acceptable to the Company. The letter of credit shall be for the full contract price inclusive of any tax or duty payable by the Customer and the Company shall be entitled to payment on presentation to such United Kingdom bank of the documents specified by the Company on the acknowledgement of order.]
8.2 [To be considered in relation to exports to Republic of Ireland]
9.1 The Company warrants that on delivery and for a period of 12 months from the date of delivery or manufacturer’s warranty whichever is longer (“Warranty Period”), the Goods shall: (a) conform in all material respects with their description (b) be fit for any purpose held out by the Company.
9.2 The Company warrants to the Customer that the Services will be provided using reasonable skill and care.
9.3 Subject to Condition 9.4, if:
(a)the Customer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Goods or Services do not comply with the warranties set out in Condition 9.1 and 9.2;
(b)the Company is given a reasonable opportunity of examining such Goods or investigating the performance of the Services; and
(c)the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Customer's cost,
the Company shall, at its option, repair or replace the defective Goods, re-perform the Services or refund the price of the defective Goods or Services in full.
9.4 The Company reserves the right to apply a 20% handling charge on Goods returned without prior authorisation by the Company or any item which requires re-packaging.
9.5 The Company shall not be liable for the Goods' failure to comply with the warranty set out in Condition 9.1 if:
(a)the Customer makes any further use of such Goods after giving a notice in accordance with Condition 9.3;
(b)the defect arises because the Customer 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 regarding the same;
(c)the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
(d)the Customer alters or repairs such Goods without the written consent of the Company;
(e)the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f)the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.6 Where delivery is made by the Company or any outside carrier for transmission to the Customer or Customer’s nominee the Company will claim against the carrier on the Customer’s behalf in respect of non-delivery or short delivery by the carrier or damage in transit provided the Customer notifies both the Company and the carrier in writing of any such claim within 5 working days. Any cost of such carriage will only be reimbursed to the Customer if the Goods are acknowledged by the Company to be defective.
9.7 Discontinued Goods cannot be accepted for return. Any Goods which have a sensitive shelf life cannot be accepted for return. Only items which have been incorrectly supplied by the Company or which are deemed to be faulty will be accepted.
9.8 Any item which is deemed to be a “special order” and not a standard stock line may not be returned for credit unless the Company has supplied it incorrectly.
9.9 Except as provided in this Condition 9, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in Condition 9.1.
10 SUPPLY OF SERVICES
10.1 The Company shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
10.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Customer’s order but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
10.3 The Company reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
10.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
11 CUSTOMER OBLIGATIONS
11.1 The Customer shall:
(a)ensure that the terms of any order and any information it provides in the Service Specification are complete and accurate;
[(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer's premises and other facilities as reasonably required by the Company to provide the Services;
(d) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) comply with all applicable laws, including health and safety laws;
[(g) keep all materials, equipment, documents and other property of the Company (“Company Materials”) at the Customer's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation; and
(h)comply with any additional obligations as set out in the Service Specification.
11.2 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a)without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company's performance of any of its obligations;
(b)the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this Condition 13.2; and
(c)the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
12. LIMITATION OF LIABILITY. THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
12.1 The restrictions on liability in this Condition 12 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in the Contract limits any liability which cannot legally be limited.
12.3 Subject to Condition 12.2 the Company’s total liability (including any liability for the acts and omissions of its servants, employees, or agents) to the Customer shall not exceed the higher of the amount invoiced to the Customer for the Goods and Services, or 125% of the price of the goods or services.
12.4 Subject to Condition 12.2 the following types of losses are wholly excluded: (a) loss of profits; (b) loss of sales or business; (c) loss of anticipated savings; (d) loss of or damage to goodwill; (e) special, indirect or consequential loss; (f) losses relating to the storage of or disposal of Goods (including any hazardous Goods); and (g) wasted expenditure.
12.5 This Condition 12 shall survive termination of the Contract.
12.6 The Company has given commitments as to compliance of the Goods and Services with relevant specifications in Condition 9 and Condition 10. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.7 The Customer acknowledges that the limitations and exclusions of liability provided in this Condition 12 are reasonable in all the circumstances.
13.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if: (a) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (b) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (c) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods or Services under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in Condition 13.1, or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
13.4 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
13.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14 GENERAL
14.1 Force Majeure. Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate the Contract by giving 7 days' written notice to the affected party.
14.2 Waiver. A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy by the Company shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.3 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (b) sent by email to the email addresses set out in an order.
14.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this Condition 14.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.5 Entire Agreement. The Contract constitutes the entire agreement between the parties.
14.6 Variation.No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.7 Governing law. The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.