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Holliday Fielding Hocking Ltd & Holliday Technical Services

Terms of Trading

1.0 Interpretation

1.1 In these Terms -

‘COMPANY’ means Holliday Fielding Hocking Limited and Holliday Technical Services

‘CUSTOMER’ means the person who or body corporate which accepts the company’s Written quotation for the sale of the goods or whose Written order is accepted by the Company.

‘CONTRACT’ means the contract for the manufacture, supply and installation of the Goods.

‘GOODS’ means the Goods (including any instalment of the goods or any parts for them) which the Company is to supply in accordance with these Terms.

‘TERMS’ means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Company and the Customer.

‘WRITING’ and any similar expression includes facsimile transmission and comparable means of communication, but not electronic mail.

1.2 A reference in these Conditions to a provision of a statute shall be construed as a reference to a provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not effect their interpretation.

2.0 Formation of Contract

2.1 The Company shall sell and the Customer shall purchase the Goods in accordance with the Company’s Written quotation (if accepted by the Customer) or the Customer’s Written order (if accepted by the Company) subject in either case to these Terms, which shall govern the Contract to the exclusion (to the extent that such terms are inconsistent with the Terms herein set out) of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer. Acceptance shall be deemed to have occurred upon the first happening of either the Customer accepting the Company’s quotation in Writing, the Customer placing an order in Writing pursuant to the Company’s quotation, or delivery of the Goods.

2.2 The Customer may not assign the Contract without the express written consent of the Company.

2.3 No variations to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Company and Customer.

2.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Company is followed or acted on entirely at the Customer’s own risk, and accordingly the company shall not be liable for such advice or recommendation which is not so confirmed.

3.0 Price

3.1 The price quoted excludes VAT (unless otherwise stated). VAT will be charged at the rate applying at the time of delivery.

3.2 Our quotations lapse after 30 days (unless otherwise stated).

3.3 The price quoted for goods excludes delivery, installation and commissioning (unless otherwise stated).

3.4 The price for installation and commissioning is based on work carried out between 8.00am and 4.30pm, Monday to Thursday and 8.00am to 3.30pm on Friday. We may charge premium rates for out of hours work and all weekend work unless otherwise stated.

3.5 Rates of tax and duties on the goods will be those applying at the time of delivery.

3.6 The Company reserves the right, by giving Written notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the price of materials, parts, labour, changes in work, delivery dates, quantities or specifications for the goods requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.

4.0 Delivery

4.1 All times quoted by us for delivery, installation or performance of any of our obligations are given in good faith, but are to be treated as estimates only.

4.2 If we fail to perform any of our obligations within the time stated on the quotation, you may discuss a cancellation with us, however:

4.2.1 You may not cancel if we receive your notice after the goods have been dispatched or installation has commenced; and

4.2.2 If you cancel the contract, you can have no further claim against us under that contract. There will be a cancellation charge on all contracts of a minimum of 15%.

4.3 If you allow us to perform any of our obligations after the estimated time for doing so, or if you accept receipt of the goods after the estimated completion time, it will be on the basis that you have no claim against us for delay (including indirect or consequential loss, or increase in the price of the goods).

4.4 If for any reason you fail to accept delivery of any goods when they are ready for delivery, or we are unable to deliver the goods because you have not provided adequate instructions, or if you do not collect the goods by the date we give for collection, we may:

4.4.1 Treat the goods as having been delivered on that day (for the purposes of risk, inspection and payment); and

4.4.2 Charge you for the storage or redelivery of those goods.

4.5 We may install or deliver goods in instalments. Each instalment is treated as a separate contract.

5.0 Safety

5.1 If we are to carry out installation or commissioning at your premises you must ensure that the workplace is safe for our workforce and there is suitable access and lighting to the area to be worked upon. You must provide running water and electricity for us free of charge.

5.2 We may decline to deliver the goods, carry out installation or commissioning if:

5.2.1 We believe that it would be unsafe, unlawful or unreasonably difficult to do so; or

5.2.2 The premises (or the access to them) are unsuitable for our vehicle or equipment.

5.3 Where we carry out installation or commissioning at your premises you must comply with any applicable laws and regulations.

5.4 If you are collecting goods from us you are responsible for the size, weight and positioning of any load on your vehicle and must ensure that your vehicle is sufficiently equipped to enable safe loading.

6.0 Risk

6.1 The goods are at your risk from the time of delivery.

6.2 Delivery takes place either:

6.2.1 At our premises (if you are collecting them or arranging carriage); or

6.2.2 At your premises or address specified by you (if we are arranging carriage).

6.3 You must inspect the goods on delivery. If any goods are damaged (or not delivered), you must contact us within 24 hours of delivery (or the expected delivery time). You must give us (and any carrier) a fair chance to inspect the damaged goods. If you fail to notify us in accordance with the preceding requirements, you will not be entitled to reject the goods and be deemed to have accepted the goods in accordance with the contract.

7.0 Payment terms

7.1 You are to pay us in cash or otherwise in cleared funds prior to delivery, unless you have an approved credit account.

7.2 If you have an approved credit account, payment is due 30 days after the date of invoice, unless otherwise agreed in writing.

7.3 If you fail to pay us in full on the due date we may:

7.3.1 Suspend or cancel future deliveries;

7.3.2 Cancel any discount offered to you;

7.3.3 Charge you interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998

a. Calculated (on a daily basis) from the date of our invoice until payment;

b. Compounded on the first day of each month; and

c. Before and after any judgment (unless a court orders otherwise);

7.3.4 Claim fixed sum compensation from you under s.5A of that Act to cover our credit control overhead costs; and

7.3.5 Recover (under clause 5.7) the cost of taking legal action to make you pay.

7.4 If you have an approved credit account, we may withdraw it or reduce your credit limit or bring forward your due date for payment. We may do any of these at any time without notice.

7.5 You do not have the right to set off any money you may claim from us against anything you may owe us.

7.6 While you owe money to us, we have a lien on any of your property in our possession, including installations which are fixed to buildings.

7.7 You are to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly including financing costs and including legal costs on a full indemnity basis) following any breach by you of any of your obligations under these terms

8.0 Title

8.1 Until you pay all debts you may owe us:

8.1.1 All goods supplied by us remain our property;

8.1.2 You must store them so that they are clearly identifiable as our property;

8.1.3 You must insure them (against the risks for which a prudent owner would insure them) and hold the policy on trust for us;

8.1.4 You may use those goods and sell them in the ordinary course of your business, but not if: a. we revoke that right (by informing you in writing); or b. you become insolvent.

8.2 You must inform us (in writing) immediately if you become insolvent.

8.3 If your right to use and sell the goods ends you must allow us to remove the goods.

8.4 We have your permission to enter any premises where the goods may be stored:

8.4.1 At any time, to inspect them; and

8.4.2 After your right to use and sell them has ended, to remove them, using reasonable force if necessary.

8.5 Despite our retention of title to the goods, we have the right to take legal proceedings to recover the price of goods supplied should you not pay us by the due date.

8.6 You are not our agent. You have no authority to make any contract on our behalf or in our name.

9.0 Warranties

9.1 We warrant that the goods and services supplied by us will:

9.1.1 Comply with their description on our quotation; and

9.1.2 Be free from material defect at the time of delivery or completion of the work (as long as you comply with clause 7.3).

9.2 A warranty is given (specific to each contract) and details are shown in our quotation. We give no other warranty (and exclude any warranty, term or condition that would otherwise be implied) as to the quality of the goods, their fitness for any purpose or the degree of skill or care with which services are performed.

9.3 If you believe that we have supplied goods or services that are defective in material or workmanship, you must:

9.3.1 Inform us (in writing), with full details, as soon as possible; and

9.3.2 Allow us to investigate (we may need access to your premises).

9.4 If the goods or services are found to be defective in material or workmanship (following our investigations), and you have complied with those conditions (in clause 7.3) in full, we will (at our option) replace the goods, or rectify any work, or refund the price.

9.5 We are not liable for any other loss or damage (including indirect or consequential loss, financial loss, loss of profits or loss of use) arising from the contract or the supply of goods or services or the use of goods, even if we are negligent.

9.6 Our total liability to you (from one single cause) for damage to property caused by our negligence is limited to five million pounds.

9.7 For all other liabilities not referred to elsewhere in these terms our liability is limited in damages to the price of the goods.

9.8 Nothing in these terms restricts or limits our liability for death or personal injury resulting from negligence.

10.0 Specification

10.1 If we prepare the goods in accordance with your specifications or instructions you must ensure that:

10.1.1 The specifications or instructions are complete and accurate;

10.1.2 Goods prepared in accordance with those specifications or instructions will be fit for the purpose for which you intend to use them; and

10.1.3 Your specifications or instructions will not result in the infringement of any intellectual property rights of a third party, or in the breach of any applicable law or regulation.

10.2 We are not responsible for the performance or suitability of goods manufactured in accordance with your specifications and instructions.

10.3 We reserve the right to;

10.3.1 Make any changes in the specifications of our goods that are necessary to ensure they conform to any applicable safety or statutory requirements; and

10.3.2 Make without notice any minor modifications in our specifications we think necessary or desirable.

10.4 Any weights, dimensions, capacities, ratings and general description contained in our catalogues and advertising material are illustrative only and will not form part of the contract between us.

10.5 Unless expressly stated in the contract gauges, weights, composition, quantities and sizes will so far as possible be adhered to, but you must allow for reasonable variations and will not be entitled to reject the goods on the ground that the goods are not precisely as specified.

11.0 Return of goods

11.1 We will accept the return of goods from you only:

11.1.1 By prior arrangement (confirmed in writing);

11.1.2 On payment of an agreed handling charge (unless the goods were defective when delivered); and

11.1.3 Where the goods are as fit for sale on their return as they were on delivery.

12.0 Export terms

12.1 Where the goods are supplied by us to you by way of export from the United Kingdom Clause 10 of these terms applies (except to the extent that it is inconsistent with any written agreement between us).

12.2 The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the contract is made apply to exports, but these terms prevail to the extent that there is any inconsistency.

12.3 Unless otherwise agreed, the goods are supplied ex works our place of manufacture.

12.4 Where the goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.

12.5 You are responsible for arranging testing and inspection of the goods at our premises before shipment (unless otherwise agreed). We are not liable for any defect in the goods which would be apparent on inspection unless a claim is made before shipment. We are not liable for any damage during transit.

12.6 We are not liable for death or personal injury arising from the use of the goods delivered in the territory of another State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977).

13.0 Cancellation

13.1 You may not cancel the order unless we agree in writing (and clauses 2.2.2 and 11.2 then apply).

13.2 If the order is cancelled (for any reason) you are then to pay us for all stock (finished or unfinished) that we may then hold (or to which we are committed) for the order.

13.3 We may suspend or cancel the order, by written notice if:

13.3.1 You fail to pay us any money when due (under the order or otherwise);

13.3.2 You become insolvent;

13.3.3 You fail to honour your obligations under these terms.

14.0 Waiver and variations

14.1 Any waiver or variation of these terms is binding in honour only unless:

14.1.1 Made (or recorded) in writing;

14.1.2 Signed on behalf of each party; and

14.1.3 Expressly stating an intention to vary these terms.

14.2 All orders that you place with us will be on these terms (or any that we may issue to replace them). By placing an order with us, you are expressly waiving any printed terms you may have to the extent that they are inconsistent with our terms.

15.0 Force majeure

15.1 If we are unable to perform our obligations to you (or able to perform them only at unreasonable cost) because of circumstances beyond our control, we may cancel or suspend any of our obligations to you, without liability.

15.2 Examples of those circumstances include act of God, accident, explosion, war, terrorism, fire, flood, transport delays, strikes and other industrial disputes and difficulty in obtaining supplies.

16.0 General

16.1 English law is applicable to any contract made under these terms. The English and Welsh courts have non-exclusive jurisdiction.

16.2 If you are more than one person, each of you has joint and several obligations under these terms.

16.3 If any of these terms are unenforceable as drafted:

16.3.1 It will not affect the enforceability of any other of these terms; and

16.3.2 If it would be enforceable if amended, it will be treated as so amended.

16.4 We may treat you as insolvent if:

16.4.1 You are unable to pay your debts as they fall due; or

16.4.2 You (or any item of your property) become the subject of:

a. Any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy);

b. Any application or proposal for any formal insolvency procedure; or

c. Any application, procedure or proposal overseas with similar effect or purpose.

16.5 All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between us and you should not rely on them in entering into any contract with us.

16.6 Any notice by either of us which is to be served under these terms may be served by leaving it at or by delivering it to (by first class post or by fax) the other’s registered office or principal place of business. All such notices must be signed.

16.7 No contract will create any right enforceable (by virtue of the Contracts (Rights of Third Parties) Act 1999) by any person not identified as the buyer or seller.

16.8 The only statements upon which you may rely in making the contract with us, are those made in writing by someone who is our authorised representative and either:

16.8.1 Contained in our estimate (or any covering letter) and not withdrawn before the contract is made; or

16.8.2 Which expressly state that you may rely on them when entering into the contract.

16.9 Nothing in these terms affects or limits our liability for fraudulent misrepresentation.

16.10 The company may sub-contract the performance of the Contract in whole or in part.

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