Terms & Conditions
1 Interpretation
1.1 In these conditions:
"Buyer"
means the person who accepts a quotation by the Seller for the sale of
Goods or whose order for the Goods is accepted by the Seller
"Goods"
means the goods (including any installment of the goods or any parts of
them) which the Seller is to supply in accordance with these Conditions.
"Seller" means Hobarts CCS Ltd, or one of the Hobart group companies listed below. Hobarts trade under the following companies:
Hobart Acrylics Ltd registration number 3361321, VAT GB 683 6777 76
Hobart Lasers Ltd registration 4236273, VAT GB 784 9117 89
Hobarts CCS Ltd registration 4771057, VAT GB 825 3174 38.
All are registered in England & Wales and the registered office is:
c/o Gary Sargeant & Company, Chartered Accountants, 5 White Oak Square, London Road, Swanley, Kent BR8 7AG, United Kingdom
"Conditions"
means the standard terms and conditions of sale set out in this
document and (unless the context otherwise requires) includes any
special terms and conditions agreed in Writing between the Buyer and
the Seller.
"Contract" means the Contract for the purchase and sale of the Goods
"Writing" includes telex, cable, facsimile transmission, E-mail or comparable means of communication.
1.2
Any reference in these Conditions to any provision of a Statute shall
be constructed as a reference to that provision as amended, re-enacted
or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the Sale
2.1
The Seller shall sell and the Buyer shall purchase the Goods in
accordance with any written quotation of the Seller which is accepted
by the Buyer, or any written order of the Buyer which is accepted by
the Seller, subject in either case to these Conditions, which shall
govern the Contract to the exclusion of any other terms and conditions
subject to which any such quotation is accepted or purported to be
accepted, or any such order is made or purported to be made, by the
Buyer.
No variation to these Conditions shall be binding unless
agreed in Writing between the authorised representatives of the Buyer
and the Seller.
2.2 The Seller's employees or agents are not
authorised to make any representations concerning the Goods unless
confirmed by the Seller in Writing. In entering into the Contract the
Buyer acknowledges that it does not rely on, and waives any claim for
breach of, any such representations which are not so confirmed.
2.3
Any advice or recommendation given by the Seller or its employees or
agents to the Buyer or its employees or agents as to the storage,
application or use of the Goods which is not confirmed in writing by
the Seller is followed or acted upon entirely at the Buyer's own risk,
and accordingly the Seller shall not be liable for any such advice or
recommendation which is not confirmed.
3 Order and Specifications
3.1
No order submitted by the Buyer shall be deemed to be accepted by the
Seller unless and until confirmed in writing by the Seller's authorised
representative.
3.2 The Buyer shall be responsible to the Seller
for ensuring the accuracy of the terms of any order (including any
applicable specification) 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.
3.3 The quantity, quality and
description of and any specification for the Goods shall be those set
out in the Seller's quotation (if accepted by the Buyer) or the Buyer's
order (if accepted by the Seller).
3.4 If the Goods are to be
manufactured or any process is to be applied to the Goods by the Seller
in accordance with a specification submitted by the Buyer, the Buyer
shall indemnify the Seller against al loss, damages, costs and expensed
awarded against or incurred by the Seller in settlement of any claims
for infringement of any patent, copyright, design, trade mark or other
industrial or intellectual property rights of any other person which
results from the Seller's use of the Buyer's specification.
3.5
The Seller reserves the right to make changes in the specification of
the Goods which are required to conform with any applicable safety or
other statutory requirements or, where the Goods are to be supplied to
the Seller's specification, which do not materially affect their
quality or performance.
3.6 No order which has been accepted by
the Seller may be cancelled by the Buyer except with the agreement in
Writing of the Seller and on terms that the Buyer shall indemnify the
Seller in full against the costs of all labour and materials incurred
by the Seller as a result of cancellation.
4 Price of the Goods
4.1
The price of the Goods shall be the Seller's quoted price or, where no
price has been quoted (or a quoted price is no longer valid), the price
listed in the Seller's published price list current to the date of
acceptance of the order. All prices quoted are valid for 30 days only
or until earlier acceptance by the Buyer, after which time they may be
altered by the Seller without giving notice to the Buyer.
4.2
The Seller reserves the right by giving notice to the Buyer at any time
before delivery, to renegotiate the price of the goods to reflect any
increase in the cost 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 cost of labour, materials or other costs of
manufacture), any change in delivery dates, quantities or
specifications for the Goods which is requested by the Buyer, or any
delay caused by any instructions of the Buyer or failure of the Buyer
to give the Seller adequate information or instructions. Subject to
regulations.
4.3 Except as otherwise stated under the terms of
any quotation or in any price list of the Seller, and unless otherwise
agreed in Writing between the Buyer and the Seller, all prices are
given by the Seller on an ex works basis, and where the seller agrees
to deliver the Goods otherwise than at the Seller's premises, the Buyer
shall be liable to pay the Seller's charges for transport, packaging
and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5
If packaging is marked "returnable," it is not included in the price,
but will be charged for unless returned within one month, carriage paid
and in good condition to the Seller's premises.
5 Terms of Payment
5.1
Subject to any special terms agreed in Writing between the Buyer and
the Seller, the Seller shall be entitled to invoice the Buyer for the
price of the Goods on or at any time after delivery of the Goods 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 price at any time after the
Seller has notified the Buyer that the Goods are ready for collection
or (as the case may be) the Seller has tendered delivery of the Goods.
5.2
The Buyer shall pay the price of the Goods within 30 days of the end of
the month in which the Seller's invoice is dated, and notwithstanding
that the property in the Goods has not passed to the Buyer.
5.3
If the Buyer fails to make full payment on the due date, then without
prejudice to any other right or remedy available to the Seller, the
Seller shall be entitled to cancel the contract or suspend any further
delivery to the Buyer, or 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).
6 Delivery
6.1
Delivery of the Goods shall be made by the Buyer collecting the Goods
at the Seller's premises at any time after the Seller has notified by
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.
6.2 Where the Goods are to be delivered
in installments, each delivery shall constitute a separate contract and
failure by the Seller to deliver any one or more of the installments in
accordance with the conditions or any claim by the Buyer in respect of
any one or more installments shall not entitle the Buyer to treat the
Contract as a whole as repudiated.
6.3 If the Seller fails to
deliver the Goods for any reason other than any cause beyond the
Seller's reasonable control or the Buyer's fault, and the Seller is
accordingly liable to the Buyer, the Seller's liability shall be
limited to the excess (if any) of the cost to the Buyer (in the
cheapest available market) of similar goods to replace those not
delivered over the price of Goods.
6.4 If the Buyer fails to
take delivery of the Goods or fails to give the Seller adequate
delivery instructions at the time stated for delivery (otherwise than
by reason of any cause beyond the Buyer's reasonable control or by
reason of the seller's fault) then, without prejudice to any other
right or remedy available to the seller, the Seller may:
store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage: or
sell
the Goods at the best price readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Buyer for the
excess over the price under the Contract or charge the Buyer for any
shortfall below the price under the Contract.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1. when the Buyer collects the Goods from the Seller's premises; or
7.1.2.
in the case of 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.
7.2 Notwithstanding delivery and the
passing of risk in the Goods, or any other provision of these
Conditions, the property in 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 and all other goods agreed to be sold by the Seller
to the Buyer for which payment is then due.
7.3 Until such time
as the property in the Goods passes to the Buyer, the Buyer shall hold
the Goods as the Seller's fiduciary agent and bailee, and shall keep
the Goods separate from those of the Buyer and third parties. The Goods
shall be properly stored, protected and insured and identified as the
Seller's property. Until property in the Goods passes to the Buyer, the
Buyer shall be entitled to resell or use the Goods in the ordinary
course of its 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 other moneys or property of the Buyer and
third parties and, in the case of tangible proceeds, properly stored,
protected and insured.
7.4 Until such time as the property in
the Goods passes to the Buyer (and provided the Goods are still in
existence and have not been resold) the Seller shall be entitled at any
time to require the Buyer to deliver up the Goods to the Seller and, if
the Buyer fails to do so forthwith, to enter upon any premises of the
Buyer or any third party where the Goods are stored and repossess the
Goods.
7.5 The Buyer shall not be entitled to pledge or in any
way charge by way of security for any indebtedness any of the Goods
which remain the property of the Seller but if the Buyer does so, all
outstanding amounts owed by the Buyer to the Seller shall (without
prejudice to any other right or remedy of the Seller) forthwith become
due and payable.
8 Warranties and Liability
8.1
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.
8.2 Where the Goods are sold
under a consumer transaction (as defined by the Customer Transactions
(Restrictions on Statements) Order 1976 the statutory rights of the
Buyer are not reduced by these Conditions.
8.3 Any claims by the
Buyer which is based on any defect in the quality or condition of the
Goods or their failure to correspond with specification shall (whether
or not delivery is refused by the Buyer) be notified to the Seller
within 7 days from the date of delivery or (where the defect or failure
was not apparent on reasonable inspection) within a reasonable time
after discovery of the defect or failure. If delivery is not refused,
and the Buyer does not notify the Seller accordingly, the Buyer shall
not be entitled to reject the Goods and the Seller shall have no
liability for such defect or failure, and the Buyer shall be bound to
pay the price as if the Goods had been delivered in accordance with the
Contract.
8.4 8.4.1 Delta Design warrants to the purchaser that
the Company's products comply with the technical specification
contained in the relevant product information leaflet, and with
applicable international standards listed therein. Products are sold
free from defects in workmanship or material for the period of the
warranty, under normal use and service.
8.4.2 Flashing beacons
and light bars: The aforementioned warranty commences on the date of
purchase by the end user from Delta Design or its appointed distributor
or approved reseller, and continues for a period of 12 months from this
date.
8.4.3 100,000 hour rated LED commercial vehicle lighting
products: The aforementioned warranty commences on the date of purchase
from Delta Design or its appointed distributor or approved reseller,
and continues for a period of 60 months from this date. This extended
warranty is not transferable, is applicable to the original
installation only, and is valid for the original purchaser of the Delta
Design product, or the final customer.
8.4.4 Faulty product must
be returned to Delta Design for evaluation, and, on confirmation of the
fault, warranty obligation will be met by free replacement of the
faulty product. Where products are returned more than 15 months after
the date of manufacture shown on the product label, Delta Design may
request proof of date of purchase by the end user.
Delta Design
may, at its sole discretion, discharge its warranty obligation by a
refund of the unit purchase price, or repair of the unit.
8.4.5
This warranty is contingent upon proper installation and use of the
unit by the purchaser, and does not cover: damage due to accident,
unusual physical, electrical or electromechanical stress, misuse,
tampering or modification to the electrical circuit or encasement, use
of unit in applications other than that for which the unit was
designed, failure to fit the unit in accordance with the relevant
installation guide, or failure of connectivity or wiring.
Statutory rights conferred by the 1979 Sale of Goods Act and subsequent legislation are not affected by this warranty.
8.5
Except in respect of death or personal injury by the Seller's
negligence, the Seller shall not be liable to the Buyer by reason of
any representation, or any implied warranty, condition or other term,
or any at duty at common law, or under the express terms of the
Contract, for any consequential loss or damage (whether for loss of
profit or otherwise), costs, expenses or other claims for consequential
compensation whatsoever (and whether caused by the negligence of the
Seller, its employees or agents or otherwise) which arise out of or in
connection with the supply of the Goods or their use or resale by the
Buyer, except as expressly provided in these Conditions.
8.6 The
Seller shall not be liable to the Buyer or be deemed to be in breach of
the Contract by reason of any delay in performing, or any failure to
perform any of the Seller's obligations in relation to the Goods, if
the delay or failure was due to any of the following causes being
causes beyond the Seller's reasonable control:
8.6.1. Act of God- explosion, flood, tempest, fire or accident:
8.6.2. War or threat of war, sabotage, insurrection, civil disturbance or requisition:
8.6.3.
Acts, restrictions, regulations, by-laws, prohibitions or measures of
any kind on the part of any governmental, parliamentary or local
authority.
8.6.4. Import or export regulations or embargoes:
8.6.5.
Strikes, lock-out or other industrial actions or trade disputes
(whether involving employees of the Seller or of a third party):
8.6.6. Difficulties in obtaining raw materials, labour, fuel, parts
8.6.7. Power failure or breakdown in machinery
9 Intellectual Property
9.1
The Buyer shall indemnify the Seller against all damages, penalties
costs and expenses to which the Seller may be liable as a result of
work done in accordance with the Buyer's specification which involves
the infringement of the patent, copyright, design, trade mark or other
industrial or intellectual property rights of any other person.
10 Indemnity
10.1
If any claim is made against the Buyer that the Goods infringe or that
their use or resale infringes the patent, copyright, design, trade mark
or other industrial or intellectual property rights of any other
person, the Seller shall indemnify the Buyer against all loss, damages,
costs and expenses awarded against or incurred by the Buyer in
connection with the claim, or paid or agreed to be paid by the Buyer in
settlement of the claim, provided that:
10.1.1. the Seller is given full control of any proceedings or negotiations in connection with any such claim:
10.1.2. the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations:
10.1.3.
except pursuant to a final award, the Buyer shall not pay or accept any
such claim, or compromise any such proceedings without the consent of
the Seller (which shall not be unreasonable withheld):
10.1.4.
the Buyer shall do nothing which would or might vitiate any policy of
insurance or insurance cover which the Buyer may have in relation to
such infringement, and this indemnity shall not apply to the extent
that the Buyer recovers any sums under any such policy or cover (which
the Buyer shall use its best endeavours to do):
10.1.5. the
Seller shall be entitled to the benefit of, and the Buyer shall
accordingly account to the Seller for, all damages and costs (if any)
awarded in favour of the Buyer which are payable by or agreed with the
consent of the Buyer (which consent shall not be unreasonably withheld)
to be paid by any other party in respect of any such claim: and
10.1.6.
without prejudice to any duty of the Buyer at common law, the Seller
shall be entitled to require the Buyer to take such steps as the Seller
may reasonably require to mitigate or reduce any such loss, damages,
costs or expenses for which the Seller is liable to indemnify the Buyer
under this clause.
11 Insolvency of Buyer
11.1 This clause applies if:
11.1.1.
the Buyer makes any voluntary arrangement with its creditors or becomes
subject to an administration order or (being an individual or firm)
becomes bankrupt or (being a Company) goes into liquidation (otherwise
than for the purposes of amalgamation or reconstruction): or
11.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer: or
11.1.3. the Buyer ceases, or threatens to cease, to carry on business: or
11.1.4.
the Seller reasonably apprehends that any of the events mentioned above
is about to occur in relation to the Buyer and notifies the Buyer
accordingly.
11.2 If the clause applies then, without
prejudice to any other right or remedy available to the Seller, the
Seller shall be entitled to cancel the Contract without any liability
to the Buyer, 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.
12 General
12.1
Any notice required or permitted to be given by either party to the
other under these Conditions shall be in Writing addressed to that
other party at its registered office or principal place of business or
such other address of the party giving notice as may at the relevant
time have been notified pursuant to this provision.
12.2 No
waiver by the Seller of any breach of the Contract by the Buyer shall
be considered as a waiver of any subsequent breach of the same or any
other provision.
12.3 If any provision of these Conditions is
held by any competent authority to be invalid or unenforceable in whole
or in part the validity of the other provisions of these Conditions and
the remainder of the provisions in question shall not be affected
thereby and the parties hereto will use their best endeavours to agree
a replacement term for that provision which as nearly as possible
achieves the same effect in this Contract.
12.4 The Contract
shall be governed by the laws of England and shall be subject to the
exclusive jurisdiction of the English Courts.
