1. INTERPRETATION

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1. In these Conditions, “Buyer” means the person(s), firm or company who purchases Goods from the Seller; “Goods” means the goods agreed in the Contract to be supplied by the Seller to the Buyer; “Seller” means The Limpet Heating Company Limited (registered in England under number 08721292); “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Seller; “Contract” means any contract between the Seller and the Buyer for the purchase and sale of the Goods incorporating these Conditions. 

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2. BASIS OF THE SALE

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1. Unless there is a variation under Condition 2.2 the Contract will be on these Conditions to the exclusion of any other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2. No variation to these Conditions shall be binding unless agreed in writing and signed by one of the Seller’s directors.

3. Any representations about the Goods shall have no effect unless confirmed by one of the Seller’s directors in writing.  The Buyer acknowledges that it does not rely on, and waives any claim for breach of, any representations which are not so confirmed.

4. The Seller is entitled to correct any typographical, clerical or other error or omission in any of its sales literature, price list, acceptance of offer, invoice or other document or information issued by it without any liability.

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3. ORDERS

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1. No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or, if earlier, the Seller delivers the Goods to the Buyer.  Any quotations given are on the basis that no contract will come into existence until the Seller despatches an acknowledgement of order to the Buyer.  Any quotation is valid for a period of 30 days only from its date or from the date the Seller withdraws it if earlier.

2. The Buyer must ensure the terms of its order and any applicable specification are accurate.  The quantity and description of the Goods shall be those set out in the Buyer's order accepted by the Seller.

3. The Seller reserves the right without notice to the Buyer to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirement or which do not materially affect their quality or performance.

4. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of one of the Seller’s directors and if it is cancelled the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

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4. PRICE

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1. Unless otherwise agreed by the Seller the price of the Goods shall be the price listed in the Seller's price list published on the date of delivery or deemed delivery.  Where the Goods are supplied for export from the United Kingdom, the Seller's published export price list relevant to the country in which the Buyer is located shall apply.  The Seller's published price lists are subject to revision from time to time without notice.

2. The price for the Goods, is exclusive of any value added tax, other taxes, levies or duties, and all costs or charges in relation to loading, unloading, carriage and insurance which the Buyer shall pay in addition when it is due to pay for the Goods.  Where the price for the Goods is stated to include carriage, such price shall be applicable only for UK mainland delivery.

3. The Seller may increase the price for the Goods if, between the date of order and the date of delivery, there is an increase in the cost of raw materials, labour and/or other production costs or if the Buyer modifies the order. The Seller shall notify the Buyer of any proposed increase prior to invoice.

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5. PAYMENT

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1. Payment of the full price of the Goods is due no later than as stated on the Seller’s invoice, and shall be paid in pounds sterling without any deduction set off or withholding whatsoever unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

2. The time for payment of the price shall be of the essence.  Receipts for payment will be issued only upon request.  No payment shall be deemed to have been received until the Seller has received cleared funds.

3. If the Buyer fails to make any payment on the due date then, without affecting any other right or remedy available to the Seller, the Seller shall be entitled to:(i)cancel the Contract or suspend any further deliveries to the Buyer; and/or (ii)charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of four per cent per annum above HSBC Plc base rate from time to time, until payment in full is made (interest to be payable on demand and to accrue daily on the basis of a year of 365 days) together with all costs and expenses incurred by the Seller in the collection of overdue monies. 

4. All payments payable to the Seller shall become due immediately upon termination of the Contract despite any other provision.

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6. DELIVERY

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1. Delivery to your premises or wherever else agreed in writing between us shall constitute delivery for the purposes of these Conditions.

2. Any dates specified for delivery of the Goods are approximate only and the Seller shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of the Goods (even if caused by the Seller’s negligence).  Time for delivery shall not be of the essence.  The Goods may be delivered by the Seller in advance of the specified quoted delivery date upon giving reasonable notice to the Buyer.  If no dates are specified delivery will be within a reasonable time.

3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

4. If the Buyer or its carrier fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery then:(i) risk of damage to or loss of the Goods will pass to the Buyer (including for loss or damage caused by the Seller’s negligence); (ii) the Goods will be deemed to have been delivered; (iii) the Seller may store the Goods until actual delivery and charge the Buyer for all related costs (including insurance) of storage; (iv) the Seller may sell the Goods at the best 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; (v) without affecting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries to the Buyer.

5. The Buyer acknowledges that where delivery is at a place nominated by the Buyer it is its responsibility to ensure that suitable access equipment and manual labour is available for the purposes of unloading and delivery of the Goods.

6. The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless written notice is given to the Seller within 2 days of the date when the Goods would in the ordinary course of events have been received and then any liability of the Seller shall be limited to replacing the Goods within a reasonable time or issuing a credit note against any invoice raised for such Goods.  If the Buyer does not notify the Seller the Buyer shall be deemed to have received the Goods and shall be bound to pay the price as if the Goods had been delivered.

7. It is the responsibility of the Buyer to arrange inspection of the Goods immediately on delivery and prior to signature of a delivery receipt, if required.

8. The manner of packing shall be at the Seller’s discretion. No liability shall be accepted for failure to pack to any particular standard or against any particular risk unless the requirement is specifically brought to then Seller’s attention, accepted in writing by the Seller and paid for by the Buyer.

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7. RISK AND OWNERSHIP

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1. Risk of damage to or loss of the Goods shall pass to the Buyer from the time of delivery from which point the Seller shall bear no further responsibility for damage to the Goods.

2. Ownership of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of: (i) the price of the Goods; and (ii) all other sums due to the Seller by the Buyer on any account.

3. Until ownership of the Goods has passed to the Buyer, the Buyer must: (i) hold the Goods on a fiduciary basis as the Seller’s bailee; (ii) store the Goods (at no cost to the Seller) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property; (iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; (iv) maintain the Goods in satisfactory condition insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller.  On request the Buyer shall produce the policy of insurance to the Seller; and (v) hold the proceeds of the insurance referred to in Condition 7.3.(iv) on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

4. The Buyer may resell the Goods before ownership has passed to it only on the following conditions: (i) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and (ii) any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale;

5. 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 the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without affecting to any other right or remedy of the Seller) immediately become due and payable.

6. The Seller shall be entitled to recover payment for the Goods even if ownership of any of the Goods has not passed from the Seller to the Buyer.

7. The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them or, where the Buyer’s right to possession has terminated, to recover them.

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8. QUALITY

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1. The Seller may at its sole discretion offer a 12-month warranty in relation to defects in the quality or condition of the Goods to the Buyer. 

2. Save for the warranty stated in Condition 8.1 we give no warranty to you in relation to the Goods and all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

3.  Any claim by the Buyer which is based on a shortfall in quantity of the Goods or any defect in the quality or condition of the Goods shall be notified to the Seller within 24 hours from the date of delivery or (where a defect or failure was not apparent on proper inspection) within 2 working days after discovery of the defect or failure.

4. If the Buyer does not notify the Seller in accordance with Condition 8.3, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such shortfall, defect or failure, and the Buyer shall be bound to pay the price.  It is the responsibility of the Buyer (at its own expense) to return any relevant Goods to the Seller's premises if requested to do so by the Seller to allow inspection by the Seller. For the purposes of this Condition 8.4 time shall be of the essence.

5. If the Buyer does notify the Seller in accordance with Condition 8.3 and the claim is valid the Seller shall (in the case of a shortfall) supply additional Goods to make up the shortfall or (in any other case) shall be entitled to replace or repair the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. 

6. It shall be the responsibility of the Buyer to collect from the Seller's premises any Goods returned pursuant to this Condition 8 if the Buyer's claim in respect of those Goods proves not to be valid and in respect of goods returned pursuant to condition 8.6 the Buyer may be liable to a re-stocking charge of 25% of invoice value.

7. The return of Goods for any other reason than that set out in Condition 8.3 shall require written consent from the Seller which may at its discretion be given if (i) of a bona fide nature; (ii) made within 72 hours of delivery; (iii) Goods are unused and undamaged; and (iv) in respect of Goods specifically identified by invoice.

8. Despite any of the other provisions of this Condition 8, if Goods delivered to the Buyer are processed, manufactured and/or incorporated by the Buyer with any other goods or have been sold by the Buyer or the Buyer does not return the same to the Seller at the Seller's request or the Buyer alters the Goods in any way the Buyer shall be deemed to have accepted such Goods as being in all respects in accordance with the Contract.

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9. LIABILITY

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1. Subject to Condition 8, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (i) any breach of these Conditions; and (ii) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

2. Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or fraudulent misrepresentation.

3. Subject to Condition 9.2: (i) the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Goods; and (ii) the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

4. Except in respect of any loss or damage caused by the Seller’s negligence the Buyer undertakes to indemnify the Seller against any loss, costs, claims, expenses or fees the Seller may incur relating to the Buyer’s breach of the Contract and/or any of these Conditions.

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10. INSOLVENCY ETC OF THE BUYER

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If: (i) the Buyer makes any voluntary arrangement with its creditors or becomes subject  to an administration order or becomes bankrupt or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or (ii) an encumbrancer  takes possession, or a receiver is appointed , of any of the property or assets of the Buyer; or (iii) the Buyer ceases or threatens to cease, to carry on business; or (iv) the Buyer shall suffer any analogous proceedings under foreign law; or (v) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly then, without affecting any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract immediately or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable despite any previous agreement or arrangement to the contrary and the Seller shall be entitled to immediate possession of the Goods and to exercise the rights of Condition 7.7.

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11. EXPORT TERMS

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1. Unless any special terms are agreed in writing between authorised representatives of the Buyer and the Seller, where the Goods are supplied for export from the United Kingdom the Buyer shall be responsible (at its own expense) for complying with any legislation or regulations governing the importation of the Goods into the country of destination (including obtaining relevant licences, permits and permissions) and for the payment of any duties and for supplying all relevant details to the Seller where delivery is to be made at the Buyer's premises.

2. Unless the Goods are to be collected by the Buyer or its carrier from the Seller's premises, the Goods shall be delivered at the Buyer's nominated premises (as agreed by the Seller).

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12. INTELLECTUAL PROPERTY

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All Intellectual Property in the Goods shall remain the exclusive property of the Seller and the Seller reserves the right to take legal action to prevent infringement of these rights.

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13. FORCE MAJEURE

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The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer  (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes  or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that if the event in question continues for a continuous period in excess of 20 days the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.

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14. GENERAL

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1. No waiver by the Seller 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.

2. Except in respect of any undisputed credit or payment due and owing by the Supplier to the Buyer, the Buyer may not withhold payment of any sum due to the Seller under the Contract by reason of any right of set-off or counterclaim which the Buyer or any other member of the same group of companies as the Buyer may have or allege to have or for any reason whatsoever.

3. The Buyer shall not assign, transfer or in any other manner make over to any third party the benefit and/or burden of the Contract or any part of it without the Seller's prior written consent.  The Seller may assign the Contract or any part of it or sub contract all or any party of the work to any third party.

4. 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 and may be delivered personally or by fax, first class recorded delivery post or first-class air mail letter.  A notice shall be deemed to have been served (if personally delivered) at the time of delivery or (if sent by first class recorded delivery post) forty-eight hours after posting or (if sent by first class air mail letter) ninety-six hours after posting or (if sent by fax) at the time of transmission.

5. If any provision of these Conditions is held by any competent authority to be invalid, unenforceable or unreasonable in whole or in part the offending words shall be deemed severable and the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected by it.

6. The Contract and the construction, validity and performance of it shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the English Courts in respect of any dispute suit or proceedings which may arise out of or in connection with it except to the extent that the Seller may invoke the jurisdiction of the courts of any other country.

7. Any notice of proceedings or other notice in connection with or which would give effect to proceedings may without prejudice to any other method of service be served on any party in accordance with Condition 14.4.

8. Where the Seller is a member of a group of companies it may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be an act or omission of the Seller.

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