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TERMS AND CONDITIONS OF SALE FOR GENERAL USE INCLUDING THROUGH THE HARKIE GLOBAL LTD E-COMMERCE INTERNET SYSTEM
The Terms and Conditions set out below shall apply to each order placed by a customer whether in writing, orally or by means of the Harkie Global Ltd website and shall be deemed incorporated into any contract formed by the acceptance of an order placed with Harkie Global Ltd.
1. INTERPRETATION
1.1 In these Conditions:
‘BUYER’ means the person whose order for the Goods is accepted by Harkie Global Ltd
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document or on the page of the Site headed “Conditions of Sale” on the date on which the Contract is made
‘CONTRACT’ means a contract for the purchase and sale of the Goods made on these Conditions
‘DEALER AGREEMENT’ means Harkie Global Ltd.’s standard form dealer agreement;
‘GOODS’ means the goods as described on the Site and/or which Harkie Global Ltd is to supply in accordance with these Conditions
‘SITE’ means the site on the Internet of which the address of the home page is www.harkie.co.uk
‘HARKIE’ means Harkie Global Ltd (registered in England and Wales under number 11929112)
‘WRITING’ includes facsimile, email and comparable means of communication.
‘RETURNS POLICY’ means the “Returns Policy” published by Harkie Global Ltd (as amended from time to time)
1.2 Any reference in these Conditions to any provision of statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. INVITATION TO TREAT
By operating this Site and posting to it details of Harkie’s product range Harkie does not make any offer to sell or supply those or any other products and does not represent that:
2.1 It is willing to supply all persons who place, or attempt to place, an order for products of Harkie; or that
2.2 It has in stock and available for supply all or any of the products described or referred to in the Site. Any order for Goods placed by the Buyer, whether on this Site, in writing, or orally, shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions, not as the acceptance by the Buyer of an offer for sale and/or supply made by Harkie.
3. BASIS OF SALE
3.1 By placing an order for the supply of Goods the Buyer shall be deemed to accept these Conditions and shall be deemed to have undertaken to comply in all respects with the obligations imposed within these Conditions.
3.2 These Conditions as from time to time varied in accordance with Condition 3.3, shall govern and be incorporated in every Contract for the sale of goods entered into between Harkie and the Buyer. They shall prevail over any other terms or conditions contained or referred to in any other order placed, or purported to be placed, by the Buyer in any other documentation submitted by the Buyer or implied by trade custom, practice or any course of dealing and all such other terms and conditions are expressly excluded.
3.3 No variation of these Conditions shall be binding or effective unless agreed in Writing between an authorised representative of Harkie and the Buyer.
3.4 Any typographical, clerical or other error or omission in the Site or in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Harkie shall be subject to correction without any liability on the part of Harkie.
4. DELIVERY
4.1 Harkie shall normally deliver to the place agreed with the Buyer. However, occasionally delivery of the Goods shall be made by the Buyer collecting the Goods at Harkie’s premises at any reasonable time after Harkie has notified the Buyer that the Goods are ready for collection.
4.2 Any time or date for delivery specified by Harkie is an estimate only and Harkie shall not be liable for the consequences of any delay arising from any cause whatsoever. Time for delivery shall not be of the essence unless previously agreed by Harkie in Writing.
4.3 Deliveries may be wholly or partially suspended and the time of such suspension added to the original Contract in the event of stoppage, delay or interruption of work in the establishment of Harkie during the delivery period as a result of strikes, lockouts, trade disputes, breakdown, accident, force majeure or any cause whatsoever beyond the control of Harkie .
4.4 In the event of the Buyer failing to give delivery instructions or to take delivery Harkie shall not be obliged to tender or re-tender (as the case may be) the goods in question, and shall be entitled to postpone or cancel the delivery of such goods without liability on its part but without prejudice to any right or remedy available to Harkie against the Buyer. In such event Harkie shall also have the right to arrange storage of the Goods and to make a storage charge until the Goods are despatched or to sell the Goods at the list 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.
4.5 Harkie may postpone or cancel any delivery (whether of the whole quantity ordered or of any instalment) so long as any amounts then owing by the Buyer to Harkie have not been duly paid, but without prejudice to any other claim or remedy which Harkie may have against the Buyer.
4.6 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Harkie to deliver any one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5. CONDITIONS AND WARRANTIES
5.1 Subject to the conditions set out below Harkie warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship.
5.2 The above warranty is given by Harkie subject to the following conditions:
(a) Harkie shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Harkie’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Harkie’s approval;
(b) Harkie shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
(c) the above warranty does not extend to parts, materials or equipment not manufactured by Harkie, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer of Harkie.
5.3 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
5.4 Harkie’s employees or agents are not authorised to make any representations or warranties concerning the Goods supplied and no such representation or warranty shall be binding on Harkie unless specifically confirmed by Harkie in Writing.
5.5 Any claim 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 Harkie 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 Harkie accordingly, the Buyer shall not be entitled to reject the Goods and Harkie 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.
5.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to Harkie in accordance with these Conditions, Harkie shall be entitled to replace the Goods (or the part in question) free of charge on the terms and conditions contained in the Returns Policy or, at Harkie’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but Harkie shall have no further liability to the Buyer.
5.7 Except in respect of death or personal injury caused by Harkie’s negligence, Harkie shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Harkie, 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, and the entire liability of Harkie under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
6. ORDERS AND SPECIFICATIONS
6.1 The Buyer shall be responsible to Harkie for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving Harkie any necessary information relating to the Goods within a sufficient time to enable Harkie to perform the Contract in accordance with its terms.
6.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Buyer’s order (if accepted by Harkie).
6.3 No order which has been accepted by Harkie may be cancelled by the Buyer except with the agreement in Writing of Harkie and on terms that the Buyer shall indemnify Harkie in full against all loss (including loss of profit), costs (including the cost of all labour and materials used and handling charges), damages, charges and expenses incurred by Harkie as a result of cancellation.
6.4 In any contract for delivery by instalments, each instalment shall constitute a separate contract between the Buyer and Harkie but any breach of the Contract in respect of any instalments by the Buyer shall entitle Harkie to treat the whole Contract as repudiated by the Buyer.
7. PRICES
7.1 In the case of normal orders the price of the Goods shall be Harkie’s quoted price on the date of the order. In cases where there is a mutually agreed date of delivery which is significantly later than the date of the order the price of the Goods shall be Harkie’s quoted price on the date of delivery.
7.2 Harkie reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to amend any error in its quoted price or reflect any increase in the cost to Harkie which is due to any factor beyond the control of Harkie (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs 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 Harkie adequate information or instructions.
7.3 Goods despatched shall be despatched according to our carriage terms as quoted at the time. Urgent deliveries involving special carriage rates shall be invoiced to the Buyer as required.
7.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to Harkie.
8. PAYMENT
8.1 Subject to any special terms agreed in Writing between the Buyer and Harkie, Harkie shall be entitled to invoice the Buyer for the price of the Goods at the time of despatch or collection of the Goods. Harkie reserves the right to take payment upon acceptance of the order where the goods are ordered or produced to special order, for goods to be delivered outside the UK, or for any other reasons as stipulated at the time on or after acceptance of the order.
8.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of Harkie’s invoice, and Harkie shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
8.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Harkie, Harkie shall be entitled to:
(a) cancel the Contract or suspend any further deliveries to the Buyer;
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and Harkie) as Harkie may think fit (notwithstanding any purported appropriation by the Buyer); and
(c) charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above Bank of England base rate from time to time, until the payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
9. RISK AND PROPERTY
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be delivered to the Buyer’s premises at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Harkie has tendered delivery of the Goods; or
(b) in the case of Goods to be collected from Harkie premises, at the time when the Buyer collects the Goods.
9.2 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 Harkie has received in cash or cleared funds payment in full of the price of the Goods together with any value added tax and other sums payable in respect of the Goods and together also with the price of all other goods agreed to be sold by Harkie to the Buyer for which payment is then due.
9.3 In the case of a Contract for delivery by instalments, the property in the Goods comprised in each instalment shall pass upon payment for such instalment notwithstanding sub-clause 9.2 above.
9.4 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Harkie’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Harkie’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
9.5 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), Harkie shall be entitled at any time to require the Buyer to deliver up the Goods to Harkie 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.
9.6 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 Harkie, but if the Buyer does so all moneys owing by the Buyer to Harkie shall (without prejudice to any other right or remedy of Harkie) forthwith become due and payable.
10. CLAIMS FOR DAMAGE, LOSS, AND NON-DELIVERY OF GOODS
10.1 Claims for loss, shortages or damages inflicted by Harkie’s courier provider must be made within 24 hours of the goods being delivered. The risk of damage or loss of the products passes to the customer when delivery is made. Delivery is made at the time we leave the products at the address specified by the customer.
10.2 In the event of non-delivery of goods (for reasons including, but not limited to, the courier provider failing to deliver the goods at all, or goods on the Delivery Note/Invoice not appearing to be in the parcel/s), we must be notified within 3 working days of the date of the invoice.
11. HEALTH AND SAFETY
11.1 It is a condition of the Contract with the Buyer that the Buyer shall need all relevant information and advice which Harkie may make available to the Buyer, in particular Harkie’s user instructions and safety notes relating to the Goods and all relevant booklets or guidance issued by the Health and Safety Executive and the Buyer shall ensure that the Goods are used in accordance with all such information, advice, instructions, notes and booklets.
11.2 In the event of the Buyer selling or hiring the Goods or disposing of the Goods on hire purchase, the Buyer shall ensure that copies of Harkie’s operating instructions and safety notes relating to the Goods are made freely available to the Buyer’s customer together with any relevant booklets or guidance issued by the Health and Safety Executive and the Buyer shall draw his customer’s attention to the need to read such instructions, notes and booklets before operating the Goods and to ensure that the Goods are operated in accordance therewith.
11.3 The Buyer shall in any event procure that the Goods shall only be used for the purpose for which they were designed.
11.4 The Buyer shall procure that any repairs to the Goods are carried out in accordance with the manufacturer’s specification.
11.5 Products should only be used by fully trained personnel, and it is the buyer’s responsibility for ensuring that goods ordered are suitable for the intended application, and to obtain adequate training in appropriate techniques and safety practices. Harkie cannot be held responsible for the misuse of any product and any advice given is no substitute for correct training.
12. THE BUYER’S INSOLVENCY
If the Buyer shall, if in the case of an individual, allow the occurrence of any grounds for the presentation of a petition for a Bankruptcy Order made under Part IX, Chapter 1, Insolvency Act 1986 or any statutory enactment or modification thereto or shall have a petition for such an order presented against him, or if in the case of a company it shall have an Administrator, Administrative Receiver or Receiver and Manager appointed or an encumbrancer takes possession of the whole or any part of its assets or makes any arrangement with its creditors or goes into liquidation (otherwise than for the purposes of a reconstruction or amalgamation) Harkie shall be at liberty by notice in Writing to cancel all Contracts without prejudice to any right or remedy which shall be accrued or shall accrue thereafter to Harkie and in particular Harkie’s right to retain any goods ordered or produced, or in the course of being produced by his order. In such circumstances if the goods have been delivered but not paid for the price shall become immediately payable notwithstanding Clause 8 of these Conditions or any other agreement or arrangement to the contrary.
13. GENERAL
13.1 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 as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.2 No waiver by Harkie 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.
13.3 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 provision in question shall not be affected.
13.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
Registered in England No. 11929112
Registered Office: Harkie Global Limited
Cherryholt Road, Stamford, PE9 2EP
Telephone: (0)1780 433150