1. | Interpretation |
1.1 | Definitions: |
| Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer: the person or firm who purchases the Goods from the Company.
Company: LEHVOSS UK Ltd, registered in England and Wales under company number 02691340 and registered office at Westminster House, 10 Westminster Road, Macclesfield, Cheshire, SK10 1BX.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Contract: the contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Location: the location where the delivery of the Goods is to take place.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Buyer's order for the Goods, as set out in the Buyer's purchase order form, the Buyer's written acceptance of the Company's quotation, or overleaf, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed between the Buyer and the Company.
|
1.2 | Interpretation: |
| | (a) | a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. | | (b) | any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. | | (c) | a reference to writing or written includes faxes and emails.
|
|
2. | BASIS OF CONTRACT |
| 2.1 | These Conditions apply to the Contract to the explicit exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless so agreed in writing.
|
| 2.2 | The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
|
| 2.3 | The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
|
| 2.4 | The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
|
| 2.5 | Any samples, drawings or advertising produced by the Company and any illustrations contained in the Company's 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.
|
| 2.6 | A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
|
3. | GOODS |
| 3.1 | The Goods are described in the Company's catalogue as modified by any applicable Specification.
|
| 3.2 | To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Company's use of the Specification. This clause 3.2 shall survive termination of the Contract.
|
| 3.3 | The Company reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
|
4. | DELIVERY |
| 4.1 | The Company shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
|
| 4.2 | Unless otherwise agreed in writing, the Company shall deliver the Goods to the Buyer’s place of business or the location set out in the Order or such other location as the parties may agree at any time after the Company notifies the Buyer that the Goods are ready.
|
| 4.3 | Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
|
| 4.4 | Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
|
| 4.5 | If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. 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 Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
| (a) | delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Buyer that the Goods were ready]; and | | (b) | the Company shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
|
|
| 4.6 | If the Buyer fails to take delivery of the Goods within three Business Days of the Company notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company's failure to comply with its obligations under the Contract:
|
| 4.7 | If ten Business Days after the day on which the Company notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Company may resell or otherwise dispose of part or all of the Goods.
|
| 4.8 | If the Company delivers up to and including 10% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
|
| 4.9 | The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
|
5. | QUALITY |
| 5.1 | The Company warrants that on delivery, the Goods shall conform in all material respects with their description and any applicable Specification; and be free from material defects in design, material and workmanship.
|
| 5.2 | Subject to clause 5.3, if:
| (a) | the Buyer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; | | (b) | the Company is given a reasonable opportunity of examining such Goods; and | | (c) | the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business, |
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
|
| 5.3 | The Company shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
| (a) | the Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2; | | (b) | the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, commissioning, installation, use and 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 Buyer; | | (d) | the Buyer 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 storage or working conditions; or | | (f) | the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
|
|
| 5.4 | Except as provided in this clause 5, the Company shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
|
| 5.5 | The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
|
| 5.6 | These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
|
6. | TITLE AND RISK |
| 6.1 | The risk in the Goods shall pass to the Buyer on completion of delivery.
|
| 6.2 | Title to the Goods shall not pass to the Buyer until the earlier of 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 Buyer, in which case title to the Goods shall pass at the time of payment of all such sums; and the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 6.4.
|
| 6.3 | Until title to the Goods has passed to the Buyer, the Buyer shall:
| (a) | store the Goods separately from all other goods held by the Buyer 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 from the date of delivery; | | (d) | notify the Company immediately if it becomes subject to any of the events listed in clause 8.1; and | | (e) | give the Company such information relating to the Goods as the Company may require from time to time.
|
|
| 6.4 | Subject to clause 6.5, the Buyer 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 Buyer 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 Buyer immediately before the time at which resale by the Buyer occurs.
|
|
| 6.5 | If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Company may have:
| (a) | the Buyer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and | | (b) | the Company may at any time require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
|
|
7. | PRICE AND PAYMENT |
| 7.1 | 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 the Company's published price list in force as at the date of delivery.
|
| 7.2 | The price of the Goods:
| (a) | excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and | | (b) | excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
|
|
| 7.3 | The Company may invoice the Buyer for the Goods on or at any time after the completion of delivery.
|
| 7.4 | The Buyer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Company. Time of payment is of the essence.
|
| 7.5 | If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
|
| 7.6 | The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
|
8. | TERMINATION |
| 8.1 | Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer or suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if:
| (a) | the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so; | | (b) | the Buyer takes any step or action in connection with its entering administration, liquidation, receivership or being wound up; | | (c) | the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or | | (d) | the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
|
|
| 8.2 | On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest.
|
| 8.3 | Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
|
9. | LIMITATION OF LIABILITY |
| 9.1 | Nothing in these Conditions shall limit or exclude the Company's liability for:
| (a) | death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); | | (b) | fraud or fraudulent misrepresentation; | | (c) | breach of the terms implied by section 12 of the Sale of Goods Act 1979; | | (d) | defective products under the Consumer Protection Act 1987; or | | (e) | any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
|
|
| 9.2 | Subject to clause 9.1:
| (a) | the Company shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and | | (b) | the Company's total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
|
|
10. | FORCE MAJEURE |
| Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract by giving 7 days' written notice to the affected party.
|
11. | GENERAL |
| 11.1 | Assignment and other dealings.
| (a) | The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. | | (b) | The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
|
|
| 11.2 | Entire agreement.
| (a) | This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. | | (a) | Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
|
|
| 11.3 | Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives
|
| 11.4 | 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 shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy.
|
| 11.5 | Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
|
| 11.6 | Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
|
| 11.7 | Third party rights. No one other than a party to this Contract [and their permitted assignees] shall have any right to enforce any of its terms.
|
| 11.8 | Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
|
