Terms and Conditions of Sale

DEFINITIONS

In these terms and conditions:

“Goods” means the goods, services or any part thereof agreed to be supplied or carried out as described on the face hereof.

“Purchaser” means the person firm or company with whom the Seller proposes to enter or has entered into a contract for the supply of Goods.

“Seller” means the H. Young Holdings PLC group company supplying the Goods or who intends to supply the Goods.

UK SALES

Unless otherwise stated in writing the following terms and conditions apply to the sale of Goods by the Seller to the Purchaser.

1)            QUOTATION

a)            Quotations are valid for thirty (30) days and neither the Seller nor the Purchaser shall be under any obligation in respect of the goods until the Seller has accepted the Purchaser’s order in writing.

b)            The Purchaser’s order, in whatever form it is provided, should contain sufficient information to enable the Seller to proceed therewith. These terms and conditions exclude any other terms and conditions inconsistent therewith which a Purchaser might seek to impose even though such other terms and conditions may be submitted in a later document and/or purport to exclude or supersede any terms and conditions inconsistent with them or may be contained in any offer acceptance or counter offer made by the Purchaser.

c)            The Seller’s salesmen are not authorised to accept confirm or vary any order nor to make any representation, warranty or promise on the Seller’s behalf.

2)            PRICE AND DELIVERY

a)            Prices of the Goods do not include VAT unless otherwise stated.

b)            Delivery is at the Purchaser’s expense ex UK warehouse unless otherwise stated.  Carriage will be arranged at the request and expense of the Purchaser.

c)            The delivery period quoted will commence from the Seller’s acceptance of the Purchaser’s order.  Whilst the Seller will take all reasonable steps to deliver the Goods or make ready the Goods for collection within the delivery period, the Seller accepts no responsibility for any failure to do so.

d)            The Seller reserves the right to deliver the Goods in more than one shipment and to tender a separate invoice in respect of each instalment.

3)            TITLE RISK AND CARRIAGE

a)            Risk in the Goods passes to the Purchaser at the time of delivery

b)            Ownership of the Goods shall not pass to the Purchaser until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:

i)             the Goods; and

ii)            all other sums which are or which become due to the Seller from the Purchaser for sales of Goods on any account.

c)            Until title to the Goods has passed to the Purchaser, the Purchaser shall:

i)             hold such Goods on a fiduciary basis as the Seller’s bailee;

ii)            store such Goods (at no cost to the Seller) separately from all other goods held by the Purchaser so that they remain readily identifiable as the Seller’s Goods;

iii)           not destroy, remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

iv)           maintain such Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks with an insurer to the reasonable satisfaction of the Seller.

v)            on request allow the Seller to inspect the Goods and produce the policy of insurance to the Seller.

d)            The Purchaser may resell the Goods before ownership has passed to it solely on the following conditions:

i)             any sale shall be effected in the ordinary course of the Purchaser's business at full market value; and

ii)            any such sale shall be a sale of the Seller's Goods on the Purchaser's own behalf and the Purchaser shall deal as principal when making such a sale.

e)            The Purchaser’s right to possession of the Goods shall terminate immediately if:

i)             the Purchaser fails to pay any amount due to the Seller on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or

ii)            the Purchaser breaches these terms and conditions (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or

iii)           the Purchaser repeatedly breaches any of these terms and conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these terms and conditions; or

iv)           the Purchaser 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 or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or

v)            the Purchaser commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or

vi)           a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that Purchaser; or

vii)          an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Purchaser; or

viii)         a floating charge holder over the assets of the Purchaser has become entitled to appoint or has appointed an administrative receiver; or

ix)           a person becomes entitled to appoint a receiver over the assets of the Purchaser or a receiver is appointed over the assets of the Purchaser; or

x)            the Purchaser, being an individual, is the subject of a bankruptcy petition or order; or

xi)           a creditor or encumbrancer of the Purchaser attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

xii)          the Purchaser suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

xiii)         the Purchaser, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or

xiv)         there is a change of control of the Purchaser; or

xv)          the Purchaser encumbers or in any way charges any of the Goods; or

xvi)         any event occurs, or proceeding is taken, with respect to the Purchaser in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this condition 3 (e) (i) to condition 3 (e) (xv) (inclusive).

f)            Upon termination of the Purchaser’s right to possession of the Goods pursuant to condition 3 (e) (i) to condition 3 (e) (xvi) (inclusive) above and providing that the Goods have not been resold, the Purchaser shall deliver up all Goods in its possession or under its control to the Seller and, if the Purchaser fails to do so promptly, the Seller may enter any premises of the Purchaser or of any third party where the relevant Goods are stored in order to recover them.

g)            The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.

h)            The Purchaser 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 Purchaser’s right to possession has terminated, to recover them.

i)             Where the Seller is unable to determine whether any Goods are the goods in respect of which the Purchaser’s right to possession has terminated, the Purchaser shall be deemed to have sold all goods of the kind sold by the Seller to the Purchaser in the order in which they were invoiced to the Purchaser.

j)             On termination of this contract, howsoever caused, the Seller’s (but not the Purchaser’s) rights contained in this condition 3 shall remain in effect.

k)            Where carriage has been arranged the Purchaser shall immediately notify the Seller and the carrier of any loss or damage in transit and confirm such loss or damage in writing within 7 days.

l)             If any provision of these terms and conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions and the remainder of such provision shall continue in full force and effect.

4)            PAYMENT

a)            All accounts are payable not later than 30 days after the date of invoice therefore, or on demand if the Seller shall so require.  Time for payment shall be of the essence.  On overdue accounts, the Seller reserves the right to charge interest at 3% over the base rate of National Westminster Bank PLC from time to time, such interest being deemed to accrue on a day to day basis from the due date for payment.

b)            The Seller reserves the right to suspend deliveries where full payment is not received on time.

c)            No cash or other discount will be allowed.

5)            CANCELLATION

a)            No cancellation by the Purchaser is permitted except where expressly agreed by a director of the Seller in writing.

6)            DESCRIPTION

a)            The Goods will be supplied substantially as described in the Seller’s catalogue or in the case of modifications agreed to by both parties substantially as described in the specification reflecting those modifications but the Seller reserves the right to make design changes which, however, will not lower the design performance of the Goods nor increase their price.

b)            The Seller makes every effort to ensure the accuracy of technical data or literature relating to the Goods but the Seller is not responsible for any damage or injury arising from any errors or omissions in such technical data.  The technical data and literature shall not constitute representations by the Seller.

7)            WARRANTY AND LIABILITY

a)            The Seller warrants to refund the price of the Goods or, at its discretion to repair or to replace free of charge any item of the Goods which within six months of the date of delivery is defective owing to the Seller’s design or workmanship, provided that the Purchaser gives written notice to the Seller of the alleged defect within seven days of discovering the relevant defect and that the Goods have been operated and maintained within the Seller’s recommendations for use and have not been modified or repaired other than by the Seller.

b)            Where the Seller has manufactured the Goods to the design of the Purchaser no liability is accepted by the Seller for design errors which remain the responsibility of the Purchaser.

c)            Goods returned hereunder shall be delivered to the Seller’s premises at the Purchaser’s expense. Goods returned hereunder and found not to be defective will be returned to the Purchaser at his expense and subject to a charge of 10% of invoiced value for testing by the Seller.

d)            The Seller’s obligation herein to refund, repair or replace the Goods and its statutory warranty as to title is the sole liability of the Seller.  All other warranties, conditions and statement express or implied, statutory or otherwise, are excluded.  The Seller shall be under no liability in contract, tort or otherwise for any loss, damage or injury whatsoever arising directly or indirectly out of the supply or use of the Goods.

e)            The Seller shall not be liable for any consequential  or indirect loss or damage whatsoever including without limitation loss of profits and loss of contracts suffered by the Purchaser whether the loss or damage arises from breach of contract, tort or otherwise.

f)            Nothing in clause 7 shall be deemed to exclude or restrict the Seller’s liability for death or personal injury resulting from negligence.

8)            FORCE MAJEURE

The Seller shall not be liable to the Purchaser in respect of failure to deliver or perform or delay in delivering or performing any obligations under this contract due to causes such as acts of God, fire, flood, war, and civil disturbances or riot, acts of Government, currency restriction, labour disputes, unavailability or materials, failure of supplier or sub-contractor to deliver on time, and every other circumstance outside the reasonable control of the Seller.

9)            PRICE VARIATION

The Seller reserves the right to increase prices due to increase of costs including those relating to exchange rates, labour, materials, transport and taxes ruling at the date of invoice.  Such increase shall be notified to the Purchaser in writing.

10)         STORAGE

When delivery is delayed for reasons not attributable to the Seller, storage or other additional costs will be charged to the Purchaser and the Goods will be at the Purchaser’s risk.  The Seller reserves the right to invoice the Goods at the original delivery date, which shall be the date of commencement of warranty.

11)         PATENT RIGHTS

a)            The sale of the Goods and the publication of any information or technical data relating thereto does not imply freedom from patent or other rights in respect of an application of the Goods by the Purchaser, and the Seller accepts no liability for infringement of such rights.

b)            The Purchaser shall indemnify the Seller and its suppliers against all royalties and other payment in respect of any patents, registered designs or other rights which may be claimed as a result of the Goods being made according to designs or specifications made by the Purchaser.  The Purchaser shall indemnify the Seller and its suppliers against all claims, expenses and costs in connection with any infringement or alleged infringement of any patent or registered design or other right in the manufacture, use or sale of such Goods.

12)         ORIGIN OF GOODS

The Seller makes no representation and gives no warranty in respect of the source of origin of manufacture or production of the Goods or any part thereof.

13)         DOCUMENTS

The Seller will supply one invoice with copies as required for each consignment of Goods notwithstanding that the consignment may comprise more than one package.

14)         LAW

a)            This quotation and any contract that shall result therefrom shall be governed by and construed in accordance with the laws of England and the Purchaser hereby irrevocably agrees to submit to the jurisdiction of the English courts.

EXPORT SALES

As for UK sales except for the following:

Clause 2:   PRICE AND DELIVERY

a)            Delivery and carriage terms are as stated in this quotation.

b)            Unless otherwise stated, all Goods will be packed to the Seller’s normal specification in non-returnable packing.

c)            This contract shall be subject to the procurement by the Purchaser at his own expense of an import licence required for the import of the Goods into the country to which the Goods are to be despatched from the UK and to the procurement by the Seller at the Seller’s expense of any export licence required for the export of the Goods from the UK provided that where the order is placed from an address in the UK the Purchaser shall be responsible for the procurement at this expense of the aforesaid export licence.

Clause 4:  PAYMENT

a)            Unless otherwise agreed, all payments shall be made in pounds sterling through the medium of a London banker’s Confirmed Irrevocable Letter of Credit to be established in favour of the Seller having an initial validity equal to full delivery period plus one month.

This Letter of Credit shall permit part shipment and provide for the release of 100% of the value of each shipment against presentation of Commercial Invoice, Packing List and Bill of Lading or Forwarding Agent’s receipt for Air Way Bill, evidencing despatch of Goods from the UK.

Unless otherwise stated no cash or other discount will be allowed.

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