PURCHASING FROM US
1. DEFINITIONS
In these Conditions
"Seller" means J & N Herz Limited
"Buyer" means the person, firm or company to whom the quotation is
addressed or on behalf of whom the order is placed.
"Goods" means the articles or things described overleaf and any goods
supplied in substitution for or in replacement to the Goods and services supplied
or work done in connection with the Goods or with the said replacement substitute
or additional goods.
2. GENERAL
Unless otherwise specifically agreed in writing by a director
of the Seller, these conditions which supersede any earlier
sets of conditions appearing on the Seller's quotations or
elsewhere shall override any terms or conditions stipulated
or incorporated or referred to by the Buyer whether in the
order or in any negotiations, and no verbal quotation or
undertaking will be binding on the Seller. In the event of
there being any inconsistency between the terms of any order
placed by the Buyer and the Seller's terms and conditions
as set out below, the Seller's terms and conditions shall
prevail and the Buyer's order shall be subject to them.
3. SPECIFICATIONS
3.1 The Buyer shall be responsible to the Seller for ensuring
the accuracy of the terms of any order submitted by the Buyer,
and for giving the Seller any necessary information relating
to the Goods within a sufficient time to enable the Seller
to perform the contract in accordance with its terms.
3.2 All specifications, drawings and illustrations accompanying
the quotation or contained in the Seller's price lists or
advertisements are approximate only and shall not form part
of the contract unless expressly so stated in writing by
the Seller. Without prejudice to the generality of the foregoing,
any such specifications, drawings and illustrations are subject
to such variations as may from time to time be made by the
manufacturers of the Goods.
4. WARRANTY
4.1 The Seller will (entirely at its option) replace or
take back or refund the purchase price, or a fair proportion
thereof, for any Goods ascertained and agreed by the Seller
to be defective provided the Buyer shall have given written
notice to the Seller of such defects within seven days of
receipt of the Goods (time being of the essence for the purposes
of this sub-clause) but the Seller shall have no further
liability of the Buyer.
4.2 Except in respect of death or personal injury caused
by the Seller's negligence, the Seller shall not be liable
to the Buyer or any third party for any direct or indirect
loss whatsoever arising out of or in connection with the
supply of the Goods or their use by the Buyer (including,
for the avoidance of doubt, any economic loss, loss of profits,
reputation, goodwill, use of interest services of employees
or agents and anticipated savings or expenses), except as
expressly provided in these conditions PROVIDED ALWAYS that
if the Buyer notifies in writing the Seller (prior to the
making of the contract) that the Buyer wishes the Seller
to accept liability for consequential loss or damage and
the Seller accepts such liability the Seller shall have the
right to increase any quoted price to reflect the increased
risk and/or the cost of insuring against such risk.
4.3 No condition is made or to be implied nor is any warranty
given or to be implied as to the life or wear of the Goods
supplied or that they will be suitable for any particular
purpose or for the use under any specific conditions notwithstanding
that such purpose or condition may be known or made known
to the Seller.
4.4 Subject as expressly provided in these conditions, and
except where the Goods are sold to a person dealing as a
consumer (within the meaning of the Unfair contract Terms
Act 1977), all warranties, conditions or other terms implied
by statute or common law are excluded to the fullest extent
permitted by law.
4.4.1 Where Goods are sold under a consumer transaction
(as defined by the Consumer Transactions (Restrictions on
Statements) Order 1975) the statutory rights of the Buyer
are not affected by these conditions.
5. DISPUTES
5.1 The Buyer will:-
5.1.1 examine products carefully within 48 hours of taking
delivery;
5.1.2 notify the Seller and carrier in writing within 7 days of taking delivery
of any damage to Goods revealed by such examination and not caused post delivery
and of any error in quantity of weight or description of Goods or that they
were mixed with others not included in the contract;
5.1.3 notify the Seller in writing within 7 days of date of the Seller's invoice
if Goods subject to such invoice have not been received. Failure to make any
notification in accordance with paragraphs (5.1.2) and (5.1.3) of this condition,
which such examination should have enabled the Buyer to make, shall constitute
waiver by the Buyer of all claims based on or relating to facts which such
examination should have revealed or for non-delivery.
5.2 The Buyer acknowledges that the Goods may be end of
line ranges and that the Seller may not be able to supply
the full quantity of Goods as specified in the contract.
Short delivery shall not entitle the Buyer to cancel the
contract or to treat the Seller as being in breach of contract,
but the Buyer shall only be liable to pay for Goods delivered.
5.3 A Buyer's right under the Sale of Goods Act 1979 Section
35 to reject defective Goods will be lost if:-
(i) he intimates his acceptance to the Seller; or
(ii) he does anything after delivery which is inconsistent with the ownership
of the Seller; or
(iii) he retains them for more than 7 days without intimating his rejection
to the Seller.
6. PRICES
The price of the Goods shall be the Seller's quoted price.
The Seller reserves the right, by giving notice to the Buyer
at any time before delivery, to increase the price of the
Goods to reflect any increase in the costs to the Seller,
which is due to any factor beyond the control of the Seller
(such as, without limitation, any foreign exchange fluctuation,
currency regulation, alteration of duties, significant increase
in the costs of labour, materials or other costs of manufacture)
or any change in delivery dates, quantities or specifications
for the Goods which is requested by the Buyer or any delay
caused by any instruction by the Buyer or failure of the
Buyer to give the Seller adequate information or instructions.
The price is exclusive of any applicable value added tax,
which the Buyer shall be additionally liable to pay to the
Seller.
7. PAYMENT
7.1 The Seller shall be entitled to invoice the Buyer for
all sums due under the contract on or at any time after delivery
unless the Goods are to be collected by the Buyer or the
Buyer wrongfully fails to take delivery of the Goods, in
which event the Seller shall be entitled to invoice the Buyer
for the amount due at any time after the Seller has tendered
delivery of the Goods or (as appropriate) at any time after
the Seller has notified the Buyer that the Goods are ready
for collection. The Buyer shall pay the invoice for the Goods
on delivery or on the terms as stated on the order form if
longer, notwithstanding that delivery may not have taken
place and the property of the Goods has not passed to the
Buyer.
7.2 If the Buyer fails to make any payment on the due date
then, without prejudice to any other right or remedy available
to the Seller, the Seller shall be entitled to:-
7.2.1 cancel the contract, suspend any further deliveries
to the Buyer or insist upon prior payment in full for the
Goods prior to making delivery thereof;
7.2.2 appropriate any payment made by the Buyer to such of the Goods (or the
Goods supplied under any other contract between the Buyer and the Seller) as
the Seller may think fit (notwithstanding any purported appropriation by the
Buyer);
7.2.3 charge the Buyer interest (both before and after any judgement) on the
amount unpaid, at the rate of 4% above Barclays Bank Plc base rate from time
to time, until payment in full is made (a part of a month being treated as
a full month for the purpose of calculating interest);
7.3 In the event of the Seller considering there to be a
material change in the financial circumstances of the Buyer
then the Seller shall be entitled to insist upon prior payment
in full for the Goods prior to making delivery thereof.
8. DELIVERY
8.1 The Seller shall not be obliged to make delivery until
full payment has been made in respect of any outstanding
accounts on any other contracts between the parties hereto.
8.2 Delivery of the Goods shall be made to the Buyer by
the Buyer collecting the Goods at the Seller's premises at
any time after the Seller has notified the Buyer that the
Goods are ready for collection or, if some other place for
delivery is agreed by the Seller, by the Seller delivering
the Goods to that place. Each delivery shall be deemed to
be a separate transaction.
8.3 Time is not the essence of contract and any time or
date specified by the Seller as time at which or date on
which the Goods will be delivered is given and intended as
an estimate only and the Seller shall not be liable for any
loss, damage or expense howsoever arising from delay in delivery.
The Goods may be delivered by the Seller in advance of the
quoted delivery date upon giving reasonable notice to the
Buyer.
8.4 The Buyer shall at the request of the Seller, supply
the Seller with such details as are necessary to allow the
Seller to make delivery and shall accept delivery whenever
the Seller proffers delivery. If the Buyer fails to take
delivery of the Goods or fails to give the Seller adequate
delivery instructions, it shall not be entitled to withhold
any payment related to such delivery and shall further indemnify
the Seller against any consequential loss, damage or expense
and after giving the Buyer 7 days notice of intention to
do so, the Seller may cancel the intended delivery and sell
the Goods to which such intended delivery related without
prejudice to its rights to claim damages in respect of such
breach of contract for any consequential loss or may store
the Goods in a place of its own choosing at the expense of
the Buyer.
8.5 Unless otherwise specifically stated, the Seller's prices
are quoted "free delivered" to the point of delivery
(being within the United Kingdom) specified overleaf, save
that where additional costs are incurred to meet special
requirements of the Buyer subsequently notified to the Seller
such additional costs will be charged to the Buyer. Additional
charges for small orders or deliveries may be made.
8.6 The Seller's liability, if any, in respect of failure
to deliver the Goods in time or at all shall not in any event
exceed the amount of any fall in the value of the Goods between
the date when it should have been delivered and the dates
on which it was in fact delivered or when the contract was
terminated, as the case may be. In no circumstances (and
whether or not involving negligence) shall the Seller be
liable for any loss of profit or third party claims or consequential
or other loss of whatever nature arising from such failure.
9. RISK AND PROPERTY
9.1 Risk of damage to or loss of the Goods shall pass to
the Buyer:-
9.1.1 in the case of Goods to be delivered to the Seller's
premises, at the time when the Seller notifies the Buyer
that the Goods are available for collection; or
9.1.2 in the case of the Goods to be delivered otherwise than at the Seller's
premises, at the time of delivery or, if the Buyer wrongfully fails to take
delivery of the Goods, the time when the Seller has tendered delivery of the
Goods.
9.2 Notwithstanding delivery of, and the passing of risk
in, the Goods or any other provision of these terms and conditions,
the property in, and legal title to, the Goods shall not
pass to the Buyer until the Seller has received in cash or
cleared funds payment in full of the price of the Goods (including
any interest thereon due under clause 7.2.3 hereof) and of
all or any other moneys owing to the Seller by the Buyer
under all contracts between the Seller and the Buyer together
with any Value Added Tax payable by the Buyer in respect
of any such payment.
9.3 Until such time as the property in the Goods passes
to the Buyer, the Buyer shall hold the Goods as the Sellers
fiduciary agent and bailee, and shall keep the Goods separate
from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Sellers property.
Until that time, the Buyer shall be entitled (subject to
9.4 and 9.5 below) to resell or use the Goods in the ordinary
course of business, but shall account to the Seller for the
proceeds of sale or otherwise of the Goods, whether tangible
or intangible, including insurance proceeds, and shall keep
all such proceeds separate from any moneys or property of
the Buyer and third parties and, in the case of tangible
proceeds, properly stored, protected and insured.
9.4 The Seller may at any time revoke the Buyers power of
sale by notice to the Buyer.
9.5 The Buyer's power of sale shall automatically cease
if a receiver is appointed over any of the assets or undertakings
of the Buyer or if a winding up order is made against the
Buyer or if the Buyer goes into liquidation (otherwise than
for the purpose of reconstruction or amalgamation) or causes
a meeting of creditors or makes any arrangement or composition
with creditors or shall commit any act of bankruptcy or allows
execution to be levied against its goods. 9.6 Upon determination
of the Buyer's power of sale, the Buyer shall place the Goods
at the disposal of the Seller, who shall be entitled, using
such force as is necessary, to enter any premises of the
Buyer at any time, for the purpose of removing the Goods.
9.7 In the event of the Seller repossessing the Goods, the
Buyer shall be liable to pay the difference between the price
of the Goods and their value on repossession and in the event
of the Seller being entitled to repossess the Goods but being
unable to do so for any reason whatsoever the Buyer shall
pay to the Seller the full price thereof.
10. PATENTS, DESIGN, COPYRIGHT AND TRADEMARKS
The Seller shall not in any circumstances be liable for
any loss, liability or expense suffered or incurred by the
Buyer by reason of any use or resale of the Goods which constitutes
an alleged or actual infringement of a patent, design, copyright
or trademark, foreign or domestic vested in a third party.
11. CANCELLATION OF THE CONTRACT
11.1 The Buyer may not cancel any order except with the
written consent of the Seller and upon terms which will indemnify
the Seller against all loss.
11.2 The Seller may refuse to supply Goods in the event
of the Buyer committing any breach of the contract or any
act of insolvency or if in the sole discretion of the Seller
it appears to the Seller that the financial position of the
Buyer has become unsatisfactory or impaired but such refusal
shall not constitute cancellation of the contract.
11.3 If performance by the Seller of its obligations under
this contract shall be hindered or prevented by industrial
dispute, accident, breakdown of machinery, shortage of materials,
exports or imports restrictions or any other cause whatsoever
beyond the reasonable control of the Seller, the Seller shall
be entitled by notice in writing to the Buyer to terminate
or vary the contract but without prejudice to the liabilities
of either parties accrued before the date of termination
or variation.
12. AUTHORITY OF THE BUYER
Any person being an employee or who holds themselves out
in any way as an agent of the Buyer who places an order verbally
or who signs a confirmation of order on the Buyer's behalf
shall be deemed to hold the authority of the Buyer so to
do unless written notice to the contrary is received from
the Buyer, such notice to be sent by recorded delivery post
not later than 3 days after delivery.
13. ASSIGNMENT
The Buyer shall not without the written consent of the Seller
assign the order or any part thereof.
14. NOTICES
Any notices given hereunder by the Seller may be served
personally or left at the residence or place of business
of the Buyer or may be sent by post in which case notice
shall be deemed to have been received in the course of the
post on the date of delivery if delivered by hand or two
days after posting if delivered by post.
15. PROPER LAW AND JURISDICTION
The terms and conditions of this contract shall be subject
to and construed in accordance with English law and the English
courts shall have exclusive jurisdiction in any dispute which
may arise save that the Seller may institute and maintain
proceedings in respect of the contract in any country. |
