General Terms and Conditions for the sales of goods
General Terms and Conditions for the Sales of Goods
Definitions:
Business Day: a day, other than a Saturday, Sunday or public holiday in England and Wales, when banks in London are open for business.
Contract: the contract between us and the Customer for the sale and purchase of the Goods in accordance with these General Terms and Conditions.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by us and the Customer.
1. General Conditions
1.1. These General Terms and Conditions shall apply to the sale of goods by Hansa-Flex UK Ltd (Hansa-flex, we, us, our) to any person (Customer). These General Terms and Conditions will supersede any previous terms and conditions issued by us. They shall apply to all present and future business transactions between us and the Customer.
1.2. These General Terms and Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. Offer and Formation of the Contract
2.1. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these General Terms and Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.2. The Order shall only be deemed to be accepted when we issue a written acceptance of the Order, at which point and on which date the Contract shall come into existence or , Any offers we make are non-binding. Any changes to the order confirmation and to these General Terms and Conditions shall require our express written approval.
2.3. The Customer waives any right it might otherwise have to rely on any term endorsed upon, deliver with or contained in any documents of the Customer that is inconsistent with these General Terms and Conditions.
2.4. 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 referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5. A quotation for the Goods given by us shall not constitute an offer. A quotation shall only be valid for a period of [20] Business Days from its date of issue.
2.6. Where clause 9.2.8 applies, the Customer shall be immediately informed about the non-availability of the Goods and any sum paid for Goods shall be promptly reimbursed by us.
2.7. We reserve the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory or regulatory requirements or, where the Goods are to be supplied to our specification, which do not materially affect their quality or performance.
3. Prices, Payments, Default and Interest
3.1. The price of the Goods shall be the price set out in the Order, or if no price is quoted, the price set out in our published price list in force as at the date of delivery, exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to us. All prices are given by us on an Ex Works basis (as defined in the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made) and where we agree to deliver the Goods otherwise than at our premises, the Customer shall be liable to pay our charges for transport, packaging and insurance.
3.2. We may, by giving notice to the Customer at any time [up to [NUMBER] Business Days] before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
3.2.1. any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
3.2.2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
3.2.3. any delay caused by any instructions of the Customer or failure of the Customer to give us adequate or accurate information or instructions.
3.3. We may invoice the Customer for the Goods on or at any time after the completion of the delivery.
3.4. The Customer shall pay each invoice submitted by us:
3.4.1. within 30 days of the date of the invoice; and
3.4.2. in full and in cleared fund to a bank account nominated in writing by us; and
time for payment shall be of the essence of the Contract.
3.5. If no previous invoices are overdue, the Customer shall be entitled to a prompt payment discount of 2 % of the gross invoice amount if payment is made within 14 days of the date of our invoice. Our invoices are payable in pound sterling to our payment office, provided that the respective invoice does not state otherwise.
3.6. A payment shall only be deemed to be effected at the moment when we can draw clear funds.
3.7. If the Customer fails to make payment on the due date, the Customer shall pay default interest on the amount unpaid at the rate of 8 % per annum above the Bank of England base rate from time to time but at 8% a year for any period when that base rate is below 0%.
4. Set-off and Right of Retention
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).
5. Retention of Title and Security Assignment
5.1. Notwithstanding delivery and the passing of risk in the Goods in clause 6, or any other provision of these General Terms and Conditions, the title in the Goods shall not pass to the Customer until we have received payment in full of the price of the Goods and all other goods agreed to be sold by us to the Customer for which payment is then due.
5.2. Until the title to the Goods passes to the Customer, the Customer shall hold and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as our property.
5.3. The Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before we receive payment for the Goods. However, if the Customer resells the Goods before that time:
5.3.1. it does so as principal and not as our agent; and
5.3.2. title to the Goods shall pass from us to the Customer immediately before the time at which resale by the Customer occurs.
5.4. The Customer’s right under clause 5.3 above shall cease automatically on the occurrence of any of the events referred to in clause 10.1.
5.5. Until the title in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), we may at any time require the Customer to deliver up the Goods to us and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
5.6. The Customer shall not be entitled to pledge, charge, create a lien, encumber or otherwise use the Goods as security for any obligation. I If the Client breaches this obligation under clause 5.6, all outstanding amounts due for the Goods shall become immediately payable in full, regardless of any previously agreed payment terms and we shall have the right to enter any premises where the Goods are stored and repossess them without notice and without liability to the Customer.
5.7. Should any third parties attempt to obtain the retained property, the Customer shall at its own expense inform such third party of our property rights and immediately notify us.
5.8. Our right to claim damages remains unaffected.
6. Delivery Time and Delivery
6.1. Any dates quoted for delivery of the Goods are approximate only and we shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered by us in advance of the quoted delivery date on giving reasonable notice to the Customer. We ship Ex Works.
6.2. The risk of damage or loss of the Goods shall pass to the Customer at the time when the Goods have left our premises or that of our supplier, and where we have agreed to arrange for delivery of the Goods at the time we deliver the Goods to the courier, freight carrier or any other person or organization chosen to effect the delivery. Should the Goods be ready for shipment and the shipment or transfer is delayed for reasons that are beyond our control, the risk shall pass at the time we notify the Customer that the Goods are ready for shipment.
6.3. Unless agreed to the contrary, the means of delivery, the means of transportation and the means of packaging the Goods are at our discretion. The cost of delivering the Goods shall be paid by the Customer. Transport insurance will only be arranged by prior express request by the Customer. Any damages or losses during delivery are to be notified immediately upon receipt of the Goods and are to be certified by the freight carrier on the waybill.
6.4. We shall be entitled to deliver (or procure the delivery of) the Goods in more than one shipment and partial delivery of the Goods in an order confirmation shall be accepted by the Customer who shall not be entitled to object or reject the Goods or any of them by reason of the shortfall.
6.5. If we fail to deliver the Goods, our 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. We 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 us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7. Warranty Rights
7.1. Subject to the following provisions, we warrant that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods will correspond with their specification and will:
7.1.1. be free of material defects in design, material and workmanship; and
7.1.2. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) at the time of delivery.
7.2. Subject as expressly provided in these General Terms and Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.3. Subject to clause 7,4, if:
7.3.1. the Customer gives notice in writing to us during the Warranty Period within a reasonable time but not later than 14 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
7.3.2. we are given a reasonable opportunity of examining such Goods; and
7.3.3. the Customer (if asked to do by us) returns such Goods to our place of business at the Customer’s cost,
we shall, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The burden of proof shall be on the Customer to prove any claim, including but not limited to the defect itself, the time of identification of the defect and the timeliness of the notice of defect.
7.4. We shall not be liable for the Goods’ failure to comply with the warranty set out in clause 7.1 if:
7.4.1. the Customer makes any further use of such Goods after giving notice in accordance with clause 7.3;
7.4.2. the defect arises because the Customer failed to follow our oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.4.3. the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
7.4.4. the Customer alters or repairs such Goods without our written consent;
7.4.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.4.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.5. Except as provided in this clause 7, we shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.
7.6. In the event that we decide to rectify a defect, we shall be obliged to bear all expenses necessary for the rectification of the defect, such as costs for transport, travel, work and materials, unless the Goods are located at a location different from the location where the Goods were originally to, and in such circumstances the Customer shall be solely responsible for all costs and expenses associated with the transportation, handling, and delivery of the rectified Goods to the required location.
7.7. These General Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
8. Damages, Limitation of Liability
8.1. The Customer shall indemnify, and keep indemnified, us from and against any losses, damages, liabilities, costs (including legal fees) and expenses incurred by us as a result of or in connection with the Customer’s breach of any of the Customer's obligations under the Contract.
8.2. Nothing in this Contract limits any liability for:
8.2.1. death or personal injury caused by negligence;
8.2.2. fraud or fraudulent misrepresentation;
8.2.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
8.2.4. defective products under the Consumer Protection Act 1987; or
8.2.5. any liability that legally cannot be limited.
8.3. Subject to clause 8.2, our total liability under or in connection with the Contract shall not exceed the total price of the Goods under a Contract.
8.4. Subject to clause 8.2, the following types of loss are wholly excluded:
8.4.1. loss of profits;
8.4.2. loss of sale or business;
8.4.3. loss of agreements or contracts;
8.4.4. loss of anticipated savings;
8.4.5. loss of use or corruption of software, data or information;
8.4.6. loss of or damage to goodwill; and
8.4.7. indirect or consequential loss.
8.5. This clause 8 shall survive termination of the Contract.
9. Force Majeure
9.1. We shall not be liable to the Customer for any failure or delay in performing any of our obligations under a Contract for so long as, and to the extent that our performance is prevented, hindered or delayed by any of the causes listed in clause 9.2 below.
9.2. Without limiting clause 9.1, the following shall be regarded as causes beyond our reasonable control:
9.2.1. act of God, flood, drought, earthquake or other natural disaster;
9.2.2. epidemic or pandemic;
9.2.3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
9.2.4. nuclear, chemical or biological contamination or sonic boom;
9.2.5. any law or action taken by a government or public authority, including imposing and export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
9.2.6. collapse of buildings, fire, explosion or accident;
9.2.7. any labour or trade dispute, strikes, industrial action or lockouts;
9.2.8. non-performance by suppliers or subcontractors;
9.2.9.
9.2.10. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.2.11. power failure or breakdown in machinery;
9.2.12. interruption or failure of utility service.
9.3. Where the delivery time for the Goods is exceeded by more than two weeks [for the reasons given in clause 9.2.8], the Customer shall be entitled to cancel the Contract by written notice to us and receive a refund of any sums paid in respect of such Goods.
9.4. Where we have delayed or failed to perform any of our obligations in relation to the Goods for the reasons given in clause 9.1, we shall be entitled to cancel the contract by notice in writing to the Customer.
10. Insolvency of the Customer
10.1. This clause 10 applies if:
10.1.1. the Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or
10.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
10.1.3. the Customer ceases, or threatens to cease, to carry on business; or
10.1.4. any of our invoices remain unpaid for more than 28 days; or
10.1.5. we reasonably apprehend that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2. If this clause applies then, without limiting any other right or remedy available to us, we may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. General
11.1. Should a provision of these General Terms and Conditions or of any other agreements be or become invalid, the validity of all other provisions or agreements remains unaffected.
11.2. The laws of England and Wales shall govern these General Terms and Conditions.
11.3. The parties irrevocably agree that, subject as provided below, the Courts of England and Wales shall have non-exclusive jurisdiction over any claim or matter arising under or in connection with these General Terms and Conditions. Nothing in this clause shall limit our right to take proceedings against the Customer in the courts of the Customer’s country of domicile. If the order confirmation does not state otherwise, place of performance is the country of domicile of our branch office that delivers the relevant Goods.