1.1 “Seller” means HARVIE TYRES Limited (Company Number 5221967) in relation to the sale of automotive Goods and Services
“The Buyer” means the person firm or company to be supplied with the Goods or Services by the Seller.
“Goods” means the Goods or materials supplied pursuant to the Contract.
“Services” means the works undertaken in accordance with the Contract.
The “Contract” means the contract for sale of the Goods and Services made between the Seller and the Buyer to which these conditions apply.
2.1 These Conditions shall apply to all contracts for the sale of Goods or Services by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply in any purchase order confirmation of order or in correspondence or elsewhere or implied by trade custom or practice.
2.2 All orders for Goods or Services shall be deemed to be an offer by the Buyer to purchase Goods or Services pursuant to these conditions.
2.3 Acceptance of delivery of the Goods or Services shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
2.4 Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by a Director of the Seller.
A quotation or tender by the Seller does not constitute an offer and the Seller reserves the right to withdrawn or amend the same at any time prior to the Seller’s acceptance of the Buyer’s order.
4. FORMATION OF CONTRACT
No contract shall come into effect until the Seller acknowledges the order to the Buyer on its official order or acknowledgement form duly signed on behalf of the Seller.
5. PRICE AND PAYMENT
5.1 The Price of the Goods and Services shall be the Seller’s quoted price which shall be binding on the Seller provided that the Buyer shall accept the Seller’s quotation within 60 days unless otherwise agreed in writing by a director or Business Centre Manager of the Seller. The Seller may by giving notice to the Buyer at any time increase the price of the Goods and Services to reflect any increase in the cost to the Seller which is due to factors which are beyond the reasonable control of the Seller (including, without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs).
5.2 Unless otherwise stated, the price is exclusive of VAT which shall be due at the rate ruling on the date of the VAT invoice rendered by the Seller to the Buyer.
5.3 The Buyer is not entitled to set off against the price (including any applicable VAT payable) amounts due from the Seller whether under the applicable contract of sale or otherwise
5.4 Unless otherwise agreed in writing by a director or a Business Centre Manager of the Seller, payment for the Goods or for any Services and VAT should be made by the Buyer to the Seller net cash within 30 days of the date of the invoice or within 30 days of either the Seller notifying the Buyer that the goods are ready for collection or the date of delivery to the Buyer and all the Services are completed notwithstanding the fact that the property in the goods has not passed from the Seller to the Buyer.
5.5 Time for payment shall be of the essence of this agreement as regards any time, date or period mentioned in this agreement or subsequently substituted, as a time, date or period by agreement in writing between the parties.
5.6 In the event of default in payment by the Buyer, the Seller shall be entitled to:
5.6.1 Charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 at 8% above base and shall accrue at such a rate after as well as before any Judgment.
5.6.2 To suspend all further delivery of Goods or provisions of Services by the Seller to the Buyer under this contract or otherwise. 5.6.3 to serve notice on the Buyer requiring immediate payment for all Goods and Services supplied by the Seller under this contract or otherwise whether or not payment is otherwise due or invoiced.
5.6.4 Recover from the Buyer any costs, legal or otherwise, incurred by the Seller in respect of recovering any outstanding monies due from the Buyer to the Seller.
5.7 If it reasonably appears to the Seller that the Buyer may be unable to pay its debts, the Seller will be entitled to demand security for payment of the contract price prior to delivery of the Goods and Services either by payment in cash or by a bank guarantee.
6.1 The Seller shall arrange for carriage of the Goods to the Buyer’s address. The cost of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer without any setoff or other withholding whatever and shall be due on the date for payment of the price. The carrier shall be deemed to be the Buyer’s agent.
6.2 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with these conditions.
6.3 The failure of the Seller to deliver or the failure of the Buyer to pay for any one or more or the said instalments of the Goods on the due dates shall not entitle either party to treat this contract as repudiated.
6.4 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all. Time for delivery is given as accurately as possible but is not guaranteed.
6.5 If the Buyer refuses or fails to take delivery of goods tendered in accordance with these conditions the Seller shall be entitled to an immediate payment in full for the Goods so tendered. The Seller shall be entitled to store at the risk of the Buyer any Goods which the Buyer refuses or of which it fails to take delivery and the Buyer shall in addition to the price pay all costs of such storage and any additional costs incurred as a result of such refusal or failure. Refusal by the Buyer to take delivery will relieve the Seller from the obligation to make further deliveries without prejudice to the Seller’s right to recover damages for such refusal. The Seller shall be entitled after the expiration of 28 days from the date on which the price became payable to dispose of the goods in such manner as the Seller may determine. 6.6 The Goods shall unless delivered by the Seller’s own transport or by a carrier on behalf of the Seller be deemed to have been delivered and the risk therein to have passed to the Buyer upon their transfer to a carrier named by the Buyer or two days after the Seller notifies the Buyer that the Goods are available for collection whichever is the earlier.
7.1 The Goods shall be at the Buyer’s risk as from delivery.
7.2 In spite of delivery having been made, property in the Goods shall not pass from the Seller to the Buyer until:
7.2.1 The Buyer shall have paid the price plus VAT in full; and
7.2.2 No other sums whatever shall be due from the Buyer to the Seller.
7.3 Until property in the Goods passes to the Buyer in accordance with clause 7.2, the Buyer shall hold the Goods (and each of them) on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and be marked in such a way that they are clearly identified as the property of the Seller.
7.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
7.5 The Seller shall be entitled to recover the price plus VAT notwithstanding that property in any of the goods has not passed from the Seller.
7.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the goods that have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so, the Seller may enter any premises owned, occupied or controlled by the Buyer where the goods are situated and repossess the goods. On the making of such request the rights of the Buyer under clause 7.4 shall cease.
7.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
7.8 The Buyer shall insure and keep insured the Goods to the full price against “all risks” to the reasonable satisfaction of the Seller until the dates that property in the goods passes from the Seller and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8. EXPORT SALES
In the case of export sales the price of the Goods and Services shall if required by the Seller be secured by an irrevocable Letter of Credit satisfactory to the Seller established by the Buyer in favour of the Seller immediately upon receipt of the Seller’s acknowledgement of order and confirmed by a United Kingdom bank acceptable to the Seller. The Letter of Credit shall be for the full contract price inclusive of any tax or duty payable by the Purchaser and the Seller shall be entitled to payment on presentation to such United Kingdom bank of the documents specified by the Seller on the acknowledgement of order.
9. SOURCE OF INFORMATION
9.1 Technical advice data or information given by the Seller its employees or agents in respect of the Goods and Services is made in good faith on the basis of test data and field experience and is provided for general advice only. No such information advice or data shall form any part of the Contract save where specifically agreed in writing by a director or Business Centre Manager of the Seller.
9.2 The Purchaser shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Seller, either directly or indirectly by the Purchaser or by the Purchaser’s agents, employees, consultants or advisers is accurate, correct and suitable. Examination or consideration by the Seller of such drawings, information, advice or recommendations shall in no way limit the Purchaser’s responsibility hereunder unless the Seller specifically agrees in writing to accept responsibility.
9.3 Material specifications, designs, calculations and any other information or documentation produced by the Seller which are expressed to be given on a confidential basis are returnable on demand, and shall not be expressed to a third party without the Seller’s written consents and, unless otherwise agreed in writing, title to such material specification, designs, calculations and other information or documentation (whether or not it is expressed to be given on a conditional basis) and any copyright or design right therein, any rights to apply for registered design in respect thereof and any other intellectual property rights therein shall at all times remain the property of the Seller.
10. WARRANTIES AND LIABILITIES
10.1 Subject to the conditions of sale set out at paragraphs 10.2. to 10.6 below the Seller warrants that the goods supplied pursuant to the Contract will correspond with any applicable manufacturer’s specifications at the time of delivery.
10.2 The following provisions set out the Seller’s entire liability (including any liability for the acts and omissions of its servants, employees, or agents) to the Buyer in respect of:-
10.2.1 Any breach of its contractual obligations arising under all contracts for the Sale of Goods or Services; and
10.2.2 Any representation statement or tortious act or omission including negligence arising under all contracts for the sale of Goods or Services.
10.3 The Seller shall not be liable to the Buyer for:
10.3.1 Any defects in the Goods or Services caused by any act neglect or default of the Buyer;
10.3.2 Any discrepancy in quality quantity or weight of Goods or materials delivered unless the Buyer notified the Seller of the same within 5 working days of receipt of the Goods; or
10.3.3 Any loss or damage to Goods whilst in transit unless the Goods are delivered by the Seller or by a carrier on behalf of the Seller and the Buyer notifies the Seller within 5 working days of receipt of the Goods.
10.4 In the event of any damage or defect or non-delivery of goods in relation to which the Seller accepts liability the Seller may at its option make good any damage or defect or non-delivery or alternatively replace or repair any Goods which are damaged or defective or repay the price paid for the Goods by the Buyer.
10.5 Under no circumstances shall the Seller have any liability to the Buyer for indirect or consequential losses, or direct losses which exceed the cost of the relevant Goods or Services as determined by the price invoiced by the Seller to the Buyer other than set out in clause 10.6.
10.6 Except in respect of death or personal injury caused by the Seller’s negligence or liability for fraud, the liability of the Seller as provided at clause 10.4 and 10.5 above shall be the extent of all liability to the Buyer whether contractual tortious or otherwise for defective damaged or undelivered Goods or Services or for any loss or damage caused directly or indirectly by such Goods or Services.
10.7 The Buyer acknowledges that the limitations and exclusions of liability provided hereunder are reasonable in all the circumstances.
11.1 This condition applies if the Buyer has a Bankruptcy Order made against him or makes an arrangement with his creditors or, being a company, has a Receiver, Liquidator, Administrator, Supervisor or Administrative Receiver appointed over its property or assets or any part of them or if any Order shall be made or any resolution passed for winding up the Buyer, or the Buyer ceases or threatens to cease to carry on business or the Seller reasonably considers that any of the events mentioned above will occur.
11.2 If this condition applies then the Seller may, without prejudice to its other rights or remedies, demand immediate payment by the Buyer of all unpaid accounts and suspend further supply and cancel this and any other contract between the Seller and the Buyer without any liability attaching to the Seller in respect of such suspension or cancellation and debit the Buyer with any loss sustained thereby.
11.3 If this condition applies and no payment is made pursuant to Clause 11.2 then the Seller may, without prejudice to its other rights or remedies, immediately enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess the Goods.
12. FORCE MAJEURE
The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods and Services by the Seller being prevented hindered or rendered uneconomic by reason of any force majeure event. A “force majeure event” shall mean any Act of God, riot, strike, lock out, trade dispute, civil war, rebellion, confiscation, nationalisation or any other circumstances whatsoever that are outside the reasonable control of the Seller affecting the provision of the Goods and Services by the Seller.
The waiver by either party of a breach or a default of any of the provisions of this contract by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
Any notice to be given hereunder shall be delivered or sent by first class post or facsimile transmission to the address or to the facsimile number of the other party and any such notice shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) from the expiration of 48 hours after posting and (if sent by facsimile transmission) from the expiration of 12 hours after dispatch.
15. INVALIDITY AND SEVERABILITY
If any of these terms shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this contract and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
Headings to clauses in this contract are for the purpose of information and identification only and shall not be construed as forming part of the contract.
This contract shall in all respects be governed and construed and interpreted in accordance with the Laws of England and Wales and the parties hereby submit to the jurisdiction of the English Courts as regard to any claim or matter arising hereunder.