TERMS AND CONDITIONS OF SALE
1. General Definitions
These conditions of sale shall form part of every day contract between Hawker Dental- Hawker Softeners Ltd (the Seller) and the Buyer for the sale and purchase of products supplied by the Seller (the Products) and supersede all previous negotiations and representations. No terms or conditions of the Buyer and no variations of these Conditions shall be effective unless in writing and agreed to and signed by a duly authorised representative of the Seller.
No Contract shall arise between the Seller and the Buyer until a firm order of the Buyer is accepted by the Seller.
3. Descriptions, Drawings, Prices etc.
All descriptions, drawings, specifications, representations and other particulars furnished by the Seller in catalogues, price lists and elsewhere (verbally or in writing) are given for general information and are not binding on the Seller unless specifically confirmed in writing as applying to the Products supplied under this Contract. Any prices, descriptions or illustrations contained in catalogues or brochures can only be true at the time of printing and are therefore subject to alteration without notice.
The Seller also reserves the right to render postage, carriage and insurance charges where applicable, together with any minimum order charge levied on the Seller by the manufacturer or supplier insofar as such charges relate to the Buyer’s order.
All goods are supplied at the price ruling at the date of despatch unless a fixed price quotation has been confirmed between the Seller and the Buyer.
Liability for the total payment due for Products supplied shall arise on delivery and unless otherwise stipulated by the Seller payment shall be due 30 days from the date of the Seller’s invoice. Where payment is tendered by cheque or other negotiable instrument, payment shall not have been made until the cheque or other instrument has been honoured and the amount credited to the Seller’s bank. The Seller shall be entitled to sue for payment due whether or not property has passed in accordance with paragraph 8 hereof.
The Seller shall be entitled to interest on sums outstanding after the due date from that date until payment at 2.5% per annum over the base lending rate from time to time of LLOYDS TSB BANK such interest to run from day to day and to accrue after as well as before any judgment.
The Buyer shall not be entitled to withhold payment for any reason or set off any counterclaim against payment due under this contract.
Delivery shall take place when the Products are unloaded at the Buyer’s premises except that if the Buyer collects or arranges collection from the Sellers premises. Delivery shall take place when the Products are handed over to the Buyer or its agent.
Any delivery dates specified are approximate only. The Seller will make every effort to comply with any requested or agreed delivery date but shall not be liable for any delay in delivery or non delivery.
On notification by the Seller that the Products are ready for despatch or collection, the Buyer shall accept immediate delivery or arrange for collection failing which the Seller may (in the absence of any other arrangements) (i) effect delivery by whatever means it considers appropriate at the Buyer’s risk and expense or (ii) arrange storage at the Buyer’s risk and expense pending delivery or (iii) resell or otherwise dispose of the Products or part thereof without prejudice to other rights of the Seller for breach of contract or otherwise.
Additional costs arising from any variation or delay in delivery occasioned by the Buyer’s instructions may be charged to the Buyer and paragraph 5 hereof shall apply to such additional costs.
The Seller shall be entitled to deliver the Products by instalments, in which case each instalment shall constitute a separate contract any failure or defect in delivery of one or more instalments shall not entitle the Buyer to repudiate the entire contract nor to cancel any subsequent instalment.
Goods must be inspected before signing for acceptance.
Risk in the Products shall pass to the Buyer on delivery in accordance with paragraph 5 hereof.
Property in the Products shall remain with the Seller and the Buyer shall hold the Products as bailee of and be fully accountable to the Seller in respect of the products until such time as all sums due under this contract have been received by the Seller.
The Seller by its employees or agents shall be entitled to enter upon or into any land, buildings or vehicles where the products or part of them are situated or reasonably thought to be situated to retake possession of the same (and the Buyer shall for such purpose notify the Seller of the whereabouts of the Products) (i) If the Buyer shall be in breach of any of the terms of this contract or (ii) if the Seller shall reasonably consider for any reason that the Products are in jeopardy, or (iii) on the happening of any of the events set out in subparagraph 7.4) below.
Upon the happening of any of the events set out in subparagraph (7.4) below the Buyer’s authority to sell the Products shall end and all Products belonging to the Seller shall be delivered to the Seller and all proceeds of sale of the Products received by the Buyer prior to the withdrawal of authority shall be paid to the Seller. Until otherwise notified by the Seller or pending any of the events of default defined in subparagraph (7.4) the Buyer shall be entitled to sell the Products and to pass good title to the Products in the normal course of its business to its customers provided that the Buyer shall account to the Seller for the proceeds.
The events referred to in subparagraphs (7.2 and (7.3) above are:
The insolvency of the Buyer within the meaning of Section 61 (4) of the Sale of Goods Act 1979:
Any notice to the buyer that a receiver or manager is to be or has been appointed over all or any part of its assets:
Any notice to the buyer that a petition to wind up the buyer is to be or has been presented or any notice convening a meeting of the Buyer at which a resolution is to be proposed to wind up the Buyer (save for the purpose of and followed by a bona fide reconstruction or amalgamation):
A decision by the Buyer that the Buyer intends to make an arrangement with its creditors:
Any other act of bankruptcy by the Buyer as defined by Section 1 of the Bankruptcy Act 1914 or which would be an act of bankruptcy if the Buyer were an individual:
Any event or default which would cause the Seller reasonably to consider that its title to the products or the proceeds of sale thereof may be adversely affected.
The Buyer shall notify the Seller forthwith of the happening of any of the events referred to in sub paragraph 7.4 above.
Claims in respect of damage, defects or shortage discovered in the warranty period must be made in writing by the Buyer to the Seller within three days of any such damage, defect or shortage becoming apparent. Claims in respect of goods damaged or lost in transit must be received within three days of receipt, or the buyer becoming aware of the failure of goods to arrive. Goods damaged in transit must be retained complete with packing for inspection by the Seller or his agent.
9. Return of Goods (Normally by prior Approval Only)
When returning goods the Buyer is requested to obtain a written receipt. All goods returned via the post or by a carried will be the responsibility of the Buyer until the goods are received by the Seller. The Seller cannot accept any responsibility for any loss or damage, and a credit will only be passed when the said goods are deemed to be of merchantable quality. In order to comply with VAT regulations the returned items should be accompanied by the original invoice/delivery note or the appropriate number and date quoted. The Seller reserves the right to credit the returned items subject to any handling charges. Products which are not normally stocked are obtained especially for the Buyer and will only be credited at the discretion of the Seller.
All conditions or warranties whether expressed or implied by statute or otherwise shall be construed subject to these Conditions and insofar as they are consistent herewith shall be excluded.
The Seller will apply the Terms and Conditions of any warranty issued by the manufacturer of the goods or his agent. Where no such warranty exists, then the Seller warrants only that the Product shall be reasonably free from defect in material or workmanship as at the date of supply and the Seller will repair/replace free of charge within one year of the date of invoice. This warranty shall not apply to any defect caused by the action of the Buyer or the failure to comply with any instructions supplied with the Product or in respect of any alteration or modification of the Product. All goods are supplied under the express terms that such repairs/replacements are solely accepted by the Buyer in full satisfaction of all other Conditions.
11. Termination, Cancellation and Suspension
If the Buyer shall not comply with any of its obligations to the Seller under this or any other Contract or upon the occurrence of any of the events referred to in paragraph 7.4 hereof the Seller shall have the right forthwith to terminate or suspend performance of this and any other contract with the buyer but without affecting other rights or remedies of the Seller.
If the Buyer shall purport to cancel or suspend the whole or any part of any contract with the Seller the Seller may by notice in writing to the Buyer elect to treat the contract as repudiated and on receipt of such notice the Buyer shall be liable to pay to the Seller by way of liquidated damages a sum equal to all expenses incurred by the Seller in connection with the Contract including a sum for administrative overheads, costs and loss of profit. The Seller’s estimate of the expenses incurred shall be final and binding on the parties.
If for any cause beyond its control the Seller is unable to deliver on the applicable date or perform any of its other obligations under this Contract the Seller may by notice in writing to the Buyer terminate or suspend performance of this Contract in respect of any one or more deliveries without liability for any loss or damage incurred by the Buyer.
12. New Accounts
Prospective Buyers wishing to open a credit account are requested to furnish two trade references and a banker’s reference. Until the opening of a credit account has been established, a remittance should accompany the order, otherwise delivery will not be made until after the references have proved acceptable.
Any dispute or difference which may arise under or in connection with or in relation to this Contract shall be referred to a single arbitrator in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof for the time being in force.
14. Trade Marks
The Buyer shall ensure that any trade marks of the Seller or other words affixed to or used in relation to the Products are not obliterated, obscured or omitted without the Seller’s prior written consent. The buyer shall not affix or use additional words or marks to or in relation to the Products without the Seller’s prior written consent.
15. Samples and Descriptions
The provision by the Seller to the Buyer of samples or the inspection of samples by the Buyer shall not render any sale a sale by sample. No guarantee or warranty is given that supplies will correspond exactly to the description or sample and the use of any description or sample shall not constitute the Contract a sale by description or sample or a sale by sample and description.
No waiver by the Seller of any breach of obligation of the Buyer pursuant to this Contract shall constitute a waiver of any other prior or subsequent breach or obligation.
The Buyer shall not assign the benefit or burden of this Contract or any part without the prior written consent of the Seller.
18. Survival of Provisions
The expiration or determination of this Contract, howsoever arising, shall be without prejudice to any provisions of this Contract (including these Conditions) which are to have effect after the date of expiration or determination.
19. Proper Law
This Contract shall be subject to English Law. The Buyer hereby submits to the non-exclusive jurisdiction of the English Courts for the determination of any question or dispute arising under this Contract.
Headings in these Conditions are for reference only and shall have no effect on the construction of the Conditions.
21. Service and Repairs
The parts and labour quoted are both covered by a twelve month guarantee. Any subsequent failure which is caused by the misuse or failure of another part will invalidate this guarantee.