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CONDITIONS FOR SALE OF GOODS TO BUSINESSES
The Customer’s attention is drawn in particular to the provisions of clause 8.
1.1 In these conditions the following words have the following meanings:
“Conditions” means the terms and conditions set out in this document as amended from time to time;
“Contract” means a contract which incorporates these conditions and made between the Customer and the Supplier for the sale of Goods;
“Customer” means the person, firm, company or other organisation purchasing Goods;
“Force Majeure” means any event outside a party’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, sub-contractors, lock-outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental actions and any other similar events;
“Goods” means any machine, article, tool, and/or device together with any accessories specified in an Order which are sold to the Customer;
“Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
“Order” means the Customer's order for the Goods, as set out in the Customer's purchase order form, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be;
“Supplier” means Hire Station Limited trading as Arcotherm, (company number 03428037) with its registered office at Vp plc, Central House, Beckwith Knowle, Otley Road, Harrogate, North Yorkshire, HG3 1UD and will include its employees, servants, agents and/or duly authorised representatives;
2 BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
3.1 The price of the Sale Goods shall be set out in the Order, or if no price is quoted, the price shown in the Supplier’s current price list from time to time. The Customer shall pay for the Goods (and any additional charges such as delivery costs) at the time and in the manner agreed. The Supplier’s prices are, unless otherwise stated, exclusive of any applicable VAT for which the Customer shall additionally be liable.
3.2 Payment by the Customer on time under the Contract is an essential condition of the Contract. Payment shall not be deemed to be made until the Supplier has received either cash or cleared funds in respect of the full amount outstanding.
3.3 If the Customer fails to make any payment in full on the due date the Supplier may charge the Customer interest (both before and after judgment) on the amount unpaid at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or at the rate of 4% above the base rate from time to time of the Supplier’s bank whichever is higher.
3.4 The Customer shall pay all sums due to the Supplier under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
3.5 website payments are processed by World Pay and we can only accept the following cards:
4 RISK, OWNERSHIP AND INSURANCE
4.1 Risk in the Goods will pass immediately to the Customer when they leave the physical possession or control of the Supplier.
4.1 Ownership of the Goods shall not pass to the Customer until the earlier of when:
4.1.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
4.1.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.2.
4.2 Subject to clause 4.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
4.2.1 it does so as principal and not as the Supplier’s agent; and
4.2.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
4.3 Until ownership in the Goods passes to the Customer, the Customer shall:-
4.3.1 hold the Goods on a fiduciary basis as the Supplier's bailee;
4.3.2 maintain the Goods in satisfactory condition; and
4.3.3 keep the Goods insured against all risks for their full price from the time they leave the physical possession or control of the Supplier.
4.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.1.5, then, without limiting any other right or remedy the Supplier may have:
4.4.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
4.4.2 the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5 DELIVERY, COLLECTION AND SERVICES
5.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
5.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.3 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier 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 Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.4 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.1 The Supplier warrants that on delivery, the Goods shall conform in all material respects with their description and be free from material defects in design, material and workmanship.
6.2 Subject to clause 6.3, if:
6.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
6.3.2 the defect arises because the Customer failed to follow the Supplier'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;
6.3.3 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.5 The Supplier may offer an additional warranty for the Goods, the terms of which shall be published from time to time and such warranty shall be subject to separate warranty terms and conditions.
6.6 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.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.8 The Customer may return Goods that are not subject to any quality issues, provided they comply with the Supplier’s returns policy from time to time in force. The Customer shall be responsible for returning the Goods and may be liable for a re-stocking fee.
7.1 If the Customer:-
7.1.1 fails to make any payment to the Supplier when due without just cause;
7.1.2 breaches the terms of the Contract and, where the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
7.1.3 persistently breaches the terms of the Contract;
7.1.4 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
7.1.5 ceases or threatens to cease to carry on business, suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver, any attachment order/arrestment is made against the Customer, any distress/diligence, execution or other legal process is levied on any property of the Customer or the Customer takes or suffers any similar action in any jurisdiction;
7.1.6 is or threatens to become the subject of any event in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in clause 7.1.5;
7.1.7 appears to the Supplier (acting reasonably) due to the Customer’s credit rating to be financially incapable of meeting its obligations under the Contract; and/or
7.1.8 appears to the Supplier (acting reasonably) to be about to suffer any of the above events;
then the Supplier shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 7.2 below.
7.2 If any of the events set out in clause 7.1 above occurs in relation to the Customer then:-
7.2.1 the Supplier may enter, without prior notice, any premises of the Customer (or premises of third parties with their consent) where Goods owned by the Supplier may be and repossess any Goods;
7.2.2 the Supplier may immediately cancel, terminate and/or suspend without Liability to the Customer the Contract and/or any other contract with the Customer; and/or
7.2.3 all monies owed by the Customer to the Supplier shall immediately become due and payable.
7.3 Any repossession of the Goods shall not affect the Supplier’s right to recover from the Customer any monies due under the Contract and/or any damages in respect of any breach which occurred prior to repossession of the Goods.
7.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
7.5 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
7.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8 LIMITATION OF LIABILITY
8.1 Nothing in this Contract shall exclude or limit the Liability of the Supplier for fraud, death or personal injury due to the Supplier’s negligence, nor exclude or limit any other type of Liability which it is not permitted to exclude or limit as a matter of law.
8.2 Subject to clause 8.1, the Supplier shall under no circumstances whatever be liable to the Customer, 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.
8.3 Subject to clauses 8.1 and 8.2, the Supplier’s total Liability to the Customer under and/or arising in relation to any Contract shall not exceed the price of the Goods or, if higher, the sum of £1,000 (or Euro equivalent). To the extent that any Liability of the Supplier to the Customer would be met by any insurance of the Supplier then the Liability of the Supplier shall be extended to the extent that such Liability is met by such insurance.
8.4 The Supplier shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance arranged as a result of the Contract and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against the Supplier.
9.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
9.2 The Customer 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 Supplier (such consent not to be unreasonably withheld.
9.3 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 e-mail.
9.4 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 9.3; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
9.5 No waiver by the Supplier of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
9.6 If any provision is held by any competent authority to be unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
9.7 The Supplier shall have no Liability to the Customer for any delay and/or non-performance of a Contract to the extent that such delay is due to any Force Majeure events. If the Supplier is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
9.8 A person who is not a party to the Contract shall not have any rights to enforce its terms.
9.9 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
9.10 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
9.11 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
© Hire Association Europe October 2014 (amended)