If you are a customer, you have certain statutory rights regarding the return of defective goods and claims in respect of losses caused by our negligence or failure to carry out our obligations. These terms shall not affect your statutory rights.
1. DEFINITIONS
In these terms and conditions of sale, the following meaning shall apply: “Company Signatory” means a person authorised by us. “Consumer” means any natural person acting for purposes outside their trade, business or profession. “Contract” means the contract for the supply of goods incorporating these Terms. “Goods” means the goods or when the context permits services to be supplied by us. “Terms” means the terms set out in this document and any special terms agreed in writing between a Company Signatory and you. “We” and “Us” means Heaton Products Limited. “You” means the person seeking to purchase goods from us.
2. THE CONTRACT
2.1 All orders are accepted by us only under these terms and they may not be altered –other than with the written agreement of a Company Signatory. Any contrary or additional terms, unless so agreed, are excluded.
2.2 Quotations and estimates are invitations to treat only.
2.3 Orders may be cancelled only with the agreement of a Company Signatory and you will indemnify us against all costs, claims, losses or expenses incurred as a result of that cancellation.
2.4 You should be responsible to us for ensuring the accuracy of the terms of any order including any applicable design drawing or specification provided to us by you and for giving us any necessary information relation to the goods within a sufficient time to enable us to perform the contract in accordance with its Terms.
2.5.1 It is your responsibility to be fully conversant with the nature and performance if the goods, including any harmful or hazardous effects their use may have.
2.5.2 Without prejudice to Clause 2.5.4 of these Terms while we take every precaution in the preparation of our catalogues, technical circulars, price lists and other literature, these documents are for your general guidance only and statements included in these documents (in the absence of fraud on our part) shall not be bound by them.
2.5.3 If you require advise (including Health and Safety information) regarding the goods, a specific request should be made and any advice given in written by a Company Signatory in response to such a request shall amount to a representation and we shall be liable accordingly.
2.5.4 We shall not be liable in respect of any misrepresentation made by us, our employees or agents as to the condition of the goods, their fitness for any purpose or as to quality or measurements, unless the representation is:
made or confirmed by a Company Signatory; and/or fraudulent. For the avoidance of doubt, our liability for damages for misrepresentation (other than fraudulent) is excluded or limited by Clause 8 of these Terms.
3. PAYMENT
3.1 Unless the sale if for cash, or other credit terms have been agreed in writing with a Company Signatory, all accounts are due for payment month end plus 30 days from the date of invoice.
3.2 We will accept payment of accounts by credit card subject to a 2.5% surcharge.
3.3 Late payment may result in cancellation of credit facilities.
3.4 Credit facilities may be withdrawn or reduced at any time at our sole discretion.
3.5 Even if we have previously agreed to give you credit, we reserve the right to refuse to execute any order or Contract if the arrangements for payment or your credit rating is not satisfactory to us. In our discretion we may require security satisfaction to us or payment for each consignment when it is available and before it is despatched in which case delivery will not be effected until we are in receipt of security or cleared funds as requested by us.
3.6 In the case of short delivery, you will remain liable to pay the full invoice price of all goods delivered or available for delivery.
3.7 You may not withhold payment of any invoice or other amount due to us by reason of any right of set off or counterclaim, which you may have, or allege to have, for any reason whatsoever.
3.8 We shall be entitled at all times to set off any debt or claim of whatever nature which we may have against you against any sums due from us to you.
4. PRICE
4.1 Prices listed or quoted are based on costs prevailing at the time when they are given or agreed. We shall be entitled to adjust the price of the goods as at the time of delivery by such amount as may be necessary to cover any increase sustained by us after the date of acceptance of your order and any direct or indirect costs of making, obtaining, handling, or supplying the goods.
4.2 Prices quoted are applicable to the quantity specified and on the information provided by you at the time of order. In the event of orders being placed for lesser quantities, or if there is any change in specifications, delivery dates, or delay is caused by your instructions or lack of instructions, we shall be entitled to adjust the price of the goods as order to take accounts of the variations.
4.3 The price of the goods shall be that prevailing at the date of delivery of the goods. The price is exclusive of VAT which shall be due at the rate ruling on the date of a VAT invoice.
4.4 We shall have the option of supplying any goods ordered by you in imperial measurements in the nearest equivalent metric measurements and the goods may be charged in metric measure allowing for conversions.
5. INSPECTION AND RETURNS
5.1 You shall inspect the goods at the place and time of unloading or collection, but nothing in these Terms shall require you to break packaging and/or unpack goods which are intended to be stored before use.
5.2.1 You must advise us by telephone immediately and give us written notice within three working days of unloading of any claim for short delivery or damage.
5.2.2 If you do not give us that notice within that time, the goods will be deemed to have been delivered in the quantities shown in the delivery documents and in a satisfactory condition.
5.2.3 You shall not be entitled, and irrevocably and unconditionally waive any rights, to reject the goods or claim any damages whatsoever, for short delivery howsoever caused.
5.2.4 Our liability for short delivery is limited to making good the shortage.
5.3.1 Where it is, or would have been, apparent on a reasonable inspection that the goods are not in conformity with the Contract or (where the Contract is a contract for sale by sample) that the bulk does not compare with the sample, you must advise us by telephone immediately, and give us written notice within three working days of inspection.
5.3.3 If you fail to give us that notice within that time, Clause 8 shall have effect.
5.3.2 If you fail to give us that notice within that time, the goods will be deemed to have been accepted and you shall not be entitled, and irrevocably and unconditioned waive any rights, to reject the goods.
5.4 After the 3 day period goods must be returned at the Customer’s request not on the Company’s own vehicle and shall be at the Customer’s risk regarding insurance for a value not less than the full invoice price.
5.5 Specifically ordered or non-stock items are not returnable.
5.6 Costs of collection and re-delivery of replacement items will be met by the Customer unless attributable to the negligence of the Seller.
5.7 Only goods returned in saleable condition can be accepted for credit.
5.8 The Seller reserves the right to levy a restocking and handling charge.
5.9 All returns must be sanctioned by the Seller prior to goods being brought back
6. DELIVERY
6.1 Delivery will be effected when the goods leave our premises whether carried by us or an independent carrier, or the premises of our suppliers when the goods are delivered direct from suppliers.
6.2 Delivery dates are given in good faith, but are estimates only.
6.3 Time for delivery shall not be of the essence of the Contract.
6.4 For the avoidance of doubt, and without detracting from any other provisions of these Terms, we shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt of any liability to any third party) resulting from any delay in delivery of the goods, or failure to deliver the goods in a reasonable time –whether such delay or failure is caused by our negligence or otherwise howsoever.
6.5 You must provide the necessary labour for unloading the goods –and unloading is to be completed with reasonable speed. If our delivery vehicle is kept waiting for an unreasonable time, or is obliged to return without completing delivery, or if we provide additional staff to unload goods, an additional charge will be made.
6.6 The price agreed includes our normal delivery charges but we may make an additional charge if we incur further costs or expenses such as (but not limited to): i) those caused by delivery of less than a full load, ii) complying with your request for delivery outside our normal delivery pattern or trading by instalments.
6.7 We reserve the right to make delivery by instalments and tender to a separate invoice in respect of each instalment. Our failure to deliver any one or more instalments, or any claim by you in respect of any one or more instalments, shall not entitle you to treat the Contract as a whole as repudiated.
6.8 If you fail to take delivery, accept or collect the goods within the agreed time, in our discretion, we may make an additional charge, invoice you for the goods, or treat the Contract as repudiated and, in any case, recover our losses from you.
6.9 If the goods are to be deposited other than on your private premises, you shall be responsible for compliance with all regulations, and for all steps which need to be taken for the protection at all times of persons or property.
6.10 If you collect goods from us, you are solely responsible for the size, weight and positioning of the load on the vehicle and shall indemnity us in respect of all costs, claims, losses or expenses we may incur as a result of your collecting the goods.
6.11 You will indemnify us in respect of all costs, claims, losses or expenses we may incur as a result of delivery in accordance with your instructions. This indemnity will be reduced in proportion to the extent that such costs, losses, claims or expenses are due to our negligence.
7. LIABILITIES
7.1 Nothing in these Terms shall exclude or restrict our liability for death or personal injury resulting from our personal negligence or our liability for fraudulent misrepresentation.
7.2 Where but for the effect of Clause 8.2 of these Terms you would have been entitled to damages against us, we shall not be liable to pay damages but subject to the conditions set out in Clause 8.4 below shall at our sole discretion, either repair the goods at our own expense, or supply replacement goods free of charge or refund all (or where appropriate part) of the price of the relevant goods.
7.3 Subject to Clause 8.1 of these Terms, we shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability in damages, we undertake liability under Claude 8.3 below.
7.4 We shall not be liable under Clause 8.3:
7.4.1 if the defect arises from wear and tear
7.4.2 if the defect arises from wilful damage, negligence, abnormal working conditions, misuse, alteration or repairs of the goods, failure to follow British Standards or industry instructions relevant to the goods, or storage of the goods in unstable conditions (but this sub-clause shall not apply to any act or omission on our part).
7.4.3 unless after discovery of the defect we are given a reasonable opportunity to inspect the goods before they are used, or in any way interfered with. For the avoidance of doubt, we acknowledge that the costs of suspending works are relevant to the determination of what is reasonable opportunity and this sub-clause shall not apply to any works affecting the goods, which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures.
7.4.4 if the defect would have been apparent on a reasonable inspection under Clause 6.1 of these Terms at time of unloading, unless you advise us by telephone immediately and written notice of any claim is given to us within three working days of the time of unloading.
7.4.5 if the defect is discovered within four months from the date of delivery, unless you give us written notice of the defect within three working days of it being discovered.
7.4.6 if in any case the defect is discovered more than four months from the date of delivery.
7.5 If the goods are not manufactured by us, or have been processed or milled by a third party –whether or not at your request –our liability, in respect of any defect in workmanship or materials of the goods, will be limited to such rights against the manufacturer or the third party as we may have in respect of those goods.
7.6 If the goods are manufactured, processed or milled by us to the design, quantity measurement or specification of you or your agents then:
7.6.1 Subject to Clause 8.1 of these Terms, we shall not be under any liability for damages whatsoever or under Clause 8.3 of these Terms as the case may be except in the event of:
7.6.1.1 fraudulent misrepresentation.
7.6.1.2 misrepresentation where the representation was made or confirmed in writing by a Company Signatory;
7.6.1.3 non-compliance with such design, quantity, measurement or specification;
7.6.1.4 breach of a written warranty signed by a Company Signatory that the goods are fit for that purpose; or
7.6.1.5 a claim maintainable against us pursuant to Clause 8.1 of these Terms.
7.6.2 You will unconditionally, fully and effectively indemnify us against all damages, costs on an indemnity basis and expenses awarded against, or incurred, by us in connection with, or paid, or agreed to be paid, by us in settlement of any claim for infringement of any patents, copyright design, trademark, or any other industrial or intellectual property rights of any other person.
7.6.3 You will further unconditionally, fully and effectively indemnify us against all loss damages, costs on an indemnity basis and expenses awarded against, or incurred, by us in connection with, or paid, or agreed to be paid, by us in settlement of any other claim arising from any such manufacturing processing or milling, including –but not limited to –any defect in the goods. This indemnity will be reduced in proportion to the extent that such loss damage, costs and expenses are due to our negligence.
7.7 You will be unconditionally, fully and effectively indemnify us against all loss damages, costs on an indemnity basis and expenses awarded against, or incurred by us in connection with, or paid, or agreed to be paid by us in settlement of any claim by third party arising from the supple or use of the goods. This indemnity will be reduced in proportion to the extent that such loss, damage, costs and expenses are due to our negligence.
7.8 Without prejudice to any other provisions in these Terms, in any event, our total liability for any one claim, or for the total of all claims arising from any one act of default on our part howsoever arising (whether arising from our negligence or otherwise), shall not exceed the purchase price of the goods –the subject matter of any claim.
8. TITLE AND RISK
8.1 Risk in the goods shall pass you when the goods are delivered.
8.2 The property in the goods shall remain with us until you pay all sums due to us, whether in respect of the Contract or otherwise.
8.3 Until title passes:
8.3.1 You shall hold the goods as our fiduciary agent an bailee.
8.3.2 We agree that you may use, or agree to sell the goods as principal and not as agents in the ordinary cause of your business subject to the express condition that at our direction, the entire proceeds of any sale or insurance proceeds received in respect of the goods are held in trust for us and not mixed with any other monies, or paid into an overdrawn bank account and, at all times, be identifiable as our money.
8.3.3 The goods shall be stored separately from any other goods and you shall not interfere with any identification marks, labels, batch numbers or serial numbers on the goods.
8.4 We shall be entitled, at any time, to recover any or all of the goods in your possession to which we have title and for that purpose, we, our employees or agents may, with such transport as is necessary, enter upon any premises occupied by you, or to which you have access and where the goods may be, or are believed to be, situated.
8.5. All reinforcement will be treated as a non-standard item and will therefore be a non-refundable product. This includes prefabricated cages, bespoke mesh, all loose cut and bent. This will also mean these items are exempt from cancellation and being returned for refund or credit.
9. NON-PAYMENT/INSOLVENCY
9.1 “Insolvent” means you becoming unable to pay you debts within the meaning of Section 123 of the Insolvency Act 1986; the levying or the treat of execution or distress on any of you property; the appointment of a receiver or administrative receiver over all, or any part, of your property; a proposal for a voluntary arrangement or compromise between you and your creditors, whether pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution for voluntary winding-up, or summoning a meeting to pass such a resolution otherwise than for the purposes of a bona fide amalgamation or reconstruction, the presentation of a petition for you winding-up, or for an administration order in relation to you. If you suffer any analogous step or proceedings under foreign law or you are ceasing, or threatening to cease to carry on your business.
9.2 If you fail to pay the price of any goods on the due date or fail to pay any sum due to us under any Contract on the due date or you become insolvent or if you are a limited company or partnership and there is a material change in your constitution or you commit a material breach of this Contract and fail to remedy that breach, all sums outstanding between you and us shall become immediately payable, and we shall be entitled to do any one or more of the following (without prejudice to any other right or remedy we may have)
9.2.1 require payment in cleared funds in advance of further deliveries
9.2.2 cancel or suspend any further deliveries to you under any Contract without liability on our part
9.2.3 without prejudice to the generality of Clause 7of these Terms exercise any of our rights pursuant to that clause.
9.3 Without prejudice to Clause 9.3 if you are acting in the course of a business then in the event of late payment we reserve the right to claim compensation pursuant to the late payment of Commercial Debts (interest) Act 1998 at the prevailing rate, currently £40 for a debt less than £1000, £70 for a debt more than £1000 but less than £10,000 and £100 for a debt in excess of £10,000.
9.4 If we reasonably incur third party costs, such as tracing or debt collection agency costs, or seek to take legal proceedings to enforce our rights as a result of your breach of this Contract –including but not limited to –recovery of any sums due, you will reimburse us such reasonable agency costs or legal costs incurred on an indemnity basis.
10. GENERAL
10.1 This contract shall be governed and interpreted according to the Law of England and Wales and you agree to submit to the non-exclusive jurisdiction of the English Courts.
10.2 We shall not be liable for any delay or failure to perform any of our obligations in relation to the goods due to any cause beyond our reasonable control, including industrial action.
10.3 The waiver by us of any breach or default of these Terms shall not be construed as a continued waiver of that breach, nor as a waiver of any subsequent breach of the same, or any other provision.
10.4 If any clause or sub-clause of these Terms is held by a competent authority to be invalid or unenforceable, the validity of the other clauses and sub-clauses of these Terms shall not be affected and they shall remain in full force and effect.
10.5 We may assign novate, or subcontract all or part of this Contract and you shall be deemed to consent to any novation. This Contract is personal to you and it may not be assigned by you.
10.6 Nothing in this Contract is intended to, or will grant any right, to any third party to enforce any Terms of this Contract, be it express or implied.
10.7 Incorporation of your business: Until you are informed in writing by us the either the status of the account has been amended to a limited company or a fresh account opened all orders will continue to be debited to the current account and you will remain responsible to us.
11. CANCELLATION
11.1 The Company (Heaton Products Limited) will be entitled without prejudice to the Company’s other rights, either to cancel or terminate the contract or to suspend any further deliveries in any of the following events:--Non-compliance by The Buyer with the Company’s terms of payment-Delays in payment when credit has been granted but the value of the order exceeds the total credit limit granted-Delays in payment when the Contract is based on Pro Forma basis with payment in full required prior to goods being delivered
11.2 Cancellation of orders cannot be accepted without prior written consent of the Company (Heaton Products Limited) and on condition that all costs and expenses incurred by the Company (Heaton Products Limited) up to the time of cancellation, and / or all loss of profits and other loss or damage resulting to the Company (Heaton Products Limited) by reason of such cancellation will be reimbursed by the Buyer to the Company (Heaton Products Limited) forthwith.
11.3 Any Non Standard / Non Stock / Bespoke Products or goods that have been modified or painted to the Buyers instruction / specifications will be exempt from cancellation and cannot be returned for a refund or credit.
11.4 Cancellation of orders for standard products may incur a cancellation charge of 20% and also the goods may be liable to our standard re-stocking charge of 20% but this might be greater depending on the goods.
12. INVOICING BY EMAIL
The Seller has the right to invoice the customer by e-mail where the customer has consented to invoices being submitted in this manner. Where invoices are sent out using electronic mail they will be deemed to have been received by the customer on the date when they are sent provided that the electronic mail is transmitted between the hours of 9.00 am and 5.00 pm on a day between Monday and Friday not being a Bank Holiday (a Business Day). If the mail is sent to the customer outside of these times then the customer will be deemed to have received the invoice on the next Business Day following.
