“Business Day” means a day other than a Saturday, Sunday or public holiday in England.
“Buyer” or “you” or “your” means the company, partnership, firm, organisation or person(s) who purchase the Goods from the Seller.
“Commencement Date” has the meaning given in clause 2.5.
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.
“Contracts” means the contract between you and us for the sale and purchase of the Goods in accordance with these Conditions and the applicable Order Form.
“Delivery” means the completion of delivery of Goods in accordance under the terms of the Contract.
“Delivery Date” means any date quoted, stated or confirmed as a delivery date for Goods in the Order Form or otherwise by or for the Seller.
“Delivery Location” has the meaning given in clause 4.1.
“Delivery Non-Conformity” means any of the following:
“Excluded Term” Subject to clause 8.1, any of your standard terms and conditions, as well as any term implied by law, trade custom, practice or course of dealing.
“Ex-Works” has the meaning given to this expression by Incoterms 2020
“Force Majeure Event” in respect of an affected party claiming force majeure relief (the “FM Relief Claimer”), any of the following events or circumstances whether or not known or anticipated before entering into the Contract:
“Goods” means the goods set out in the Order Form produced by us for you.
“Losses” means all costs, fees, charges, fines, penalties, expenses, losses, damages (or other forms of compensation), claims and other detriments or liabilities whatsoever (to include, but not limited to, professional fees and expenses incurred whether or not any mediation, arbitration or litigation is involved).
“Material” a thing is “material” if a reasonably prudent person would deem that thing to be so serious, substantial, important, necessary, or relevant (taking into account its cost (if any), nature, extent, impact and consequences) that that thing must not be ignored in any decision making and/or other activity concerning that person or his, her or its assets, rights, obligations, Detriments, interests or affairs – and Materially will be construed accordingly.
“Order” means your order for the supply of Goods, as set out or confirmed in the Order Form.
“Order Form” means our quotation, proposal or tender submission, your written approval of our quotation, our acknowledgement of order, your purchase order form, or any other document from us containing the specifics of the order such as customer details, delivery details, Goods details and pricing.
“Seller” or “us” or “we” means Howardson Group Limited, whose registered in England and Wales with Company number 00641526, whose registered office address is at Howardson Works, Ashbourne Road, Kirk Langley, Derby, DE6 4NJ.
“Specification” means any specifications for the Goods, including any related plans and drawings, that are published on our website for the applicable Goods or as otherwise expressly agreed with you based on approval of our technical submission for the applicable Goods.
“VAT” means value added tax (or any replacement or successor tax, levy, or duty) at applicable rates from time to time.
“Warranty Period” is a period of 24 months from the date of Delivery for the applicable Goods.
2.1 These Conditions apply to the Contract to the exclusion of all Excluded Terms.
2.2 You waive any right you might otherwise have to rely on or enforce any Excluded Term.
2.3 All quotations for the Goods given by us are subject to withdrawal or alteration without notice and we reserve the right to accept or reject any Order.
2.4 The Order (whether or not preceded by an accepted quotation) constitutes an offer by you to purchase Goods in accordance with these Conditions.
2.5 The Order shall only be deemed to be accepted when we issue written acknowledgement of the Order, at which point on the applicable day the Contract shall come into existence and commence (Commencement Date).
2.6 We may cancel your Order at any time before Goods that are no longer in stock or are dispatched for Delivery.
2.7 Goods ordered under an Order Form are a firm commitment from you unless and until the parties agree otherwise in writing.
2.8 We are responsible for having all necessary export licences and you shall be responsible for all necessary import licences, exchange permit and other buy-side documentation relevant to the sale and purchase of Goods under the Contract.
3.1 The Goods are described in the Specification and/or the applicable Order Form.
3.2 You are fully and solely responsible for checking the accuracy, relevance and usefulness of any Specification and promptly notifying us of any inaccurate information.
3.3 To the extent that the Goods are to be manufactured in accordance with a Specification, drawings, sketches or designs supplied by you or agreed with you, you shall ensure that: (i) you are entitled to provide the same to us without infringing any third party’s intellectual property rights of any kind, (ii) the supplied information and material is complete, accurate and not misleading, and (iii) you shall (subject to clause 8.1) indemnify us against all Losses suffered or incurred by us in connection with any allegation or claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with our use of the Specification. This clause 3.3 shall survive termination of the Contract.
3.4 We reserve the right to amend the Specification if required by any applicable statutory or regulatory requirement, and we shall notify you in any such event.
3.5 Subject to clause 5:
(a) for any Goods made to any drawing, design or specification supplied by you, they cannot be returned to us and have no cancellation rights; and
(b) for other Goods, we shall be under no obligation to accept returned Goods or allow any Order to be cancelled and in no circumstances will Goods be accepted for credit, if not returned within 7 days of Delivery.
3.6 For any cash sales, we reserve the right not to accept Goods back for credit if supplied correct to the applicable Order.
3.7 For credit buyers, a 25% handling charge or the cost of the carriage, whichever is greater, will be levied against accepted Goods turned which were supplied correct to the applicable Goods.
4.1 We shall deliver the Goods to the location set out in the Order Form or such other location as the parties may agree (Delivery Location) at any time after we notify you that the Goods are ready.
4.2 Unless stated otherwise in the order Form, all Goods shall be delivered Ex-Works (Howardson Works, Ashbourne Rd, Kirk Langley, Derby DE6 4NJ). Where Goods are sold Ex Works (Howardson Works, Ashbourne Rd, Kirk Langley, Derby DE6 4NJ), we will not accept any responsibility for any damage, shortage or loss in transit.
4.3 We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. In any event, any dates quoted, stated or confirmed for delivery are approximate only, and the time of delivery is not of the essence.
4.4 We may deliver Goods by instalments, which may be invoiced and paid for separately. References in the Contract to Orders shall, where applicable, be read as references to instalments. Failure by you to accept or pay for any instalment, may be treated by us as repudiation of the Contract.
4.5 We will endeavour to comply with reasonable requests by you for postponement of Delivery but are under no obligation to do so.
4.6 Delays in the delivery of an Order shall not entitle you to: (i) cancel or terminate the Contract or any Order; (ii) refuse to take delivery of any Goods; (iii) claim any refund, waiver, reimbursement or compensation of any kind; (iv) obtain substitute products from another seller; or (v) do any combination of any of the above.
4.7 If you fail to take delivery of any Goods on the Delivery Date or within three Business Days of us notifying you that the Goods are ready for collection, then, except where that failure or delay is caused by our failure to comply with our obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Delivery Date or the third Business Day following the day on which we notified you that the Order was ready for collection; and
(b) subject to clause 4.8, we shall store the Goods until the Goods come into the possession of you or your representatives at your own risk; and we shall be entitled to charge you for all related costs and expenses (including for storage and insurance).
4.8 If Goods within the scope of clause 4.7(b) are in storage with us for more than 30 days, we are entitled to dispose of the Goods as we deem appropriate. If on any such disposal the aggregate of (i) the amounts (if any) received from you for the Goods prior to the disposal, and (ii) the net disposal proceeds if any received from the disposal (“net disposal proceeds” being total proceeds less direct disposal costs) is: (a) less than the price charged to you for the Goods, you shall pay the difference immediately on request, or (b) more than the price charged to you for the Goods, we shall promptly pay the difference to you, or (c) equal to the price charged to you for the Goods, no further payments for the Goods are payable by either party.
4.9 Where the Contract permits you to order Goods in instalments and you cancel, suspend of reduce an Order for Goods in relation to the instalments or otherwise:
(a) we may treat the Contract as being repudiated; or
(b) we may, at our sole discretion, complete any work in progress for the production of the Goods required to meet that commitment and deliver the Goods according to such commitment and you will accept and pay for the Goods.
4.10 Subject to clause 8.1
(a) You must visibly inspect the Goods promptly after Delivery.
(b) Any Goods Non-Conformity that can reasonably be detected on a careful visible inspection on delivery must be notified to us within 24 hours of such Goods being delivered.
(c) Any Goods Non-Conformity that cannot reasonably be detected on a careful visible inspection on delivery must be notified to us within 24 hours of you becoming aware of the Goods Non-Conformity.
(d) Packaging materials shall remain our property and you shall make them available for collection at any times as we shall reasonably request. Returns of packaging materials shall not be at your expense but our reasonable expense.
5.1 We warrant that on delivery, and for the Warranty Period, the Goods shall:
(a) conform in all material respects with the Specification;
(b) be free from Material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by us or expressly agreed in the Order Form.
5.2 Subject to clause 5.3 and clause 8.1, if you believe that the Goods have a Goods Non-Conformity and gives notice in writing to us during the Warranty Period in accordance with clause 4.10 that some or all of the Goods do not comply with the warranty set out in clause 5.1, the following shall apply:
(a) we must be given a reasonable opportunity to examine the Goods;
(b) you shall promptly share such information about the storage, handling, use and possession of the Goods as we deem appropriate (and such information must be complete, accurate and not-misleading in all Material respects);
(c) you must return such Goods to our premises as notified or requested us at your own cost;
(d) if we determine (or agree with you) that there is a Goods Non-Conformity with the applicable Goods, we shall promptly select one of the following remedies for you at our own cost:
(i) repair or replace the Goods with the Goods Non-Conformity;
(ii) refund (and/or waive) in full the price for the Goods with the Goods Non-Conformity; or
(iii) procure replacement goods with the same or similar specification the Specification for the Goods with Goods Non-Conformity.
5.3 We shall not be liable for any Goods Non-Conformity if:
(a) the notice for the Goods Non-Conformity is given contrary to clause 5.2;
(b) you or one of your direct or indirect representatives, agents, licensees, customers or contractors makes any further use of such Goods after giving valid notice under clause 5.2;
(c) the Goods Non-Conformity cannot reasonably be considered to be Material;
(d) the Goods Non-Conformity concerns a Dennis Pro 34R to the extent stored or used in the UK or Europe;
(e) the Goods Non-Conformity arises because you failed to follow our oral or written instructions as to the storage, commissioning, installation, use, maintenance, handling or any other aspect of the Goods or (if there are none) good trade or other reasonable practice regarding the same;
(f) the Goods Non-Conformity arises as a result of us following any drawing, design or specification supplied by you;
(g) the Goods Non-Conformity arises as a result of a Force Majeure Event, fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(h) you or any of your direct or indirect representatives, agents, licensees, customers or contractors modifies, alters, treats or repairs such Goods without the written consent of us;
(i) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(j) any combination of any of the above applies.
5.4 Repaired or replacement Goods will continue to enjoy the benefit of the warranty under above terms of clause 5 for the remaining period of the Warranty Period for the original Good only. If you want repair cover beyond the Warranty Period, it will need to enter into a separate chargeable service and maintenance package with us.
5.5 Any repair or replacement under any of our chargeable service and maintenance packages for the Goods, beyond the above warranty cover, only applies if the parties enter into a sperate service and maintenance agreement.
5.6 Except as provided in this clause 5, but subject to clause 8.1, we shall have no liability to you in respect of the Goods' failure to comply with the warranty set out in clause 5.1 or for any other Goods Non-Conformity.
5.7 The terms implied by sections 12 to 15 of the Sale of Goods Act 1979 are to be implied into the Contract subject to the modification that in Section 14(3) the words ‘in writing’ shall be substituted for the words ‘or by implication’.
5.8 These Conditions shall apply to any repaired or replacement Goods supplied by us.
5.9 You shall fully co-operate with us in respect of any product recalls concerning the Goods.
6.1 The risk in the Goods shall pass to you when the Goods are Delivered, even if we arrange for delivery at your cost.
6.2 Title to the Goods, or any part thereof, shall not pass to you until the earlier of:
(a) when we receive payment in full (in cash or cleared funds) for: (i) the Goods, and (ii) any other goods that we have supplied to you in respect of which payment has become due; or
(b) when we serve written notice upon you specifying that title in the Goods or such part thereof has passed; or
(c) when you resell those Goods, in which case title to those Goods shall pass to you at the time specified in clause 6.4
6.3 Until title to the Goods has passed to you, you shall:
(a) store the Goods separately from all other goods you hold so that they remain readily identifiable as our property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of Delivery;
(d) notify us immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
(e) provide us such information as we may reasonably require from time to time relating to:
(i) the Goods; and
(ii) your ongoing financial position.
6.4 Subject to clause 6.5, you may resell or use the Goods in the ordinary course of your business (but not otherwise) before we receive payment for the Goods. However, if you resell the Goods before that time:
(a) you do so as principal and not as our agent; and
(b) title to the Goods shall pass from us to you immediately before the time at which resale by you occurs.
6.5 At any time before title to the Goods passes to you, we may:
(a) by notice in writing, terminate your right under clause 6.4 to resell the Goods or use them in the ordinary course of your business; and
(b) require you deliver up all Goods in your possession that have not been resold, or irrevocably incorporated into another product and if you fail to do so promptly, enter any premises belonging to you or of any third party where the Goods are stored in order to recover them.
7.1 The price of the Goods shall be the price set out, listed or incorporated by reference in the Order Form, or, if no price is so set out, listed or incorporated, the price set out in our published price list in force as at the date of Delivery.
7.2 We may, by giving notice to you at any time before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by you to change the delivery date(s), quantities, design, types of Goods ordered, or the Specification; or
(c) any delay caused by any of your instructions or your failure to give us adequate or accurate information or instructions.
7.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which you shall additionally be liable to pay to us at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance, Delivery and transport of the Goods, including duties such as import duties or other charges at a foreign port which shall be invoiced to you.
7.4 We may invoice you for the Goods on or at any time after the Contract is formed for the Goods.
7.5 You shall pay each invoice submitted by us:
(a) on the last day of the month following Delivery; or
(b) in the case of Delivery by instalments, on the last day of the month following Delivery of such instalment.
7.6 All amounts due under the Contract shall be paid in pounds sterling and in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.7 Without prejudice to clause 7.7, no dispute arising in relation to the Contract, nor any delays caused by a Force Majeure Event, or you yourself, entitles you to withhold or delay payment. We have the sole discretion to make a commercial choice to provide you with a discount from the price for the applicable Goods, provided that payment for the Goods is received by us on or before the day stated on the invoice).
7.8 If payment in respect of the Goods is overdue, we may:
(a) withhold Delivery of any Goods otherwise due to be delivered and/or
(b) cancel any order which may be outstanding without any liability for doing so
(c) charge interest on outstanding invoices as in clause 7.9;
(d) pursue other rights and remedies; or
(e) do any combination of any of the above.
7.9 We may charge you late payment interest on any overdue sum from the due date until payment of the overdue sum, such interest applying before or after judgment. Interest under this clause 7.9 will accrue each day at 8% a year above the Bank of England's base rate from time to time. We may compound late payment interest at the end of each calendar month.
8.1 Nothing in the Contract shall operate or be interpreted to exclude or limit any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any other matter for which liability cannot be excluded or limited by law.
8.2 Nothing in the Contract shall operate or be interpreted to exclude or limit any mandatory consumer rights where you are a consumer under the law.
8.3 Nothing in this clause 8 is intended to exclude or limits your obligation to pay properly due and payable invoiced amounts under the Contract.
8.4 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.5 We shall not be liable for the proportion of any Losses caused by, arising from, or made worse by:
(a) any Force Majeure Event hindering, delaying or blocking performance or compliance with the Contract (provided reasonable efforts are devoted to minimise such hindrance, delay or blockage);
(b) you rejecting a remedy offered by us under and in accordance with clause 5 for the applicable Goods Non-Conformity;
(c) any contributory or other statement, act, or omission of any person other than the Seller, a sub-contractor of the Seller or their respective employees or agents; or
(d) any combination of the above applying.
8.6 Subject to clause 8.1, clause 8.2 and clause 5 (in that order), we shall not be liable for any kind of the following (in each case whether or not known or foreseeable at the time the parties entered into the Contract):
(a) loss of production, sales or business revenue, loss of profit, loss or depletion of goodwill, losses concerning business interruption, loss of savings, loss of capital gains, loss or corruption of data or wasted expenditure;
(b) without prejudice to clause 8.6.1, special losses, commercial losses or pure economic losses;
(c) indirect or consequential losses;
(d) punitive damages; or
(e) any combination of any of the above.
8.7 Subject to clause 8.1, clause 8.2, clause 8.3 and clause 5 (in that order), our total liability to you concerning any Goods shall not exceed a sum equal to 125% of the price of such Goods (subject to an aggregate liability cap of £1,000,000 under the Contract).
8.8 The limits and exclusions in this clause reflect the insurance cover we have been able to arrange, and you are responsible for making your own arrangements for the insurance of any excess liability.
8.9 This clause 8 shall survive termination of the Contract.
9.1 Without limiting our other rights or remedies, we may terminate the Contract prior to the Delivery of Goods with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 20 days of you being notified in writing to do so;
(b) you take any steps or actions in connection with entering administration, provisional liquidation or any composition or arrangement you’re your creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
(c) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(d) your financial position deteriorates so far as to commercially justify the opinion that your ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between us and you if you become subject to any of the events listed in clause 9.1(b) to clause 9.1(d) inclusive, or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under the Contract on the due date for payment.
9.3 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason, you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt.
9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10.1 Governing Law: English and Welsh laws govern the Contract in all respects.
10.2 Jurisdiction: English and Welsh courts have exclusive jurisdiction for all disputes related to the Contract.
10.3 Affirmations: Each party affirms that it:
(a) has had the opportunity to seek independent legal and other professional advice to assess entering into and complying with the Contract;
(b) has the necessary rights, powers, licenses, accreditations, and legal capacity to enter into and comply with the Contract; and
(c) will ensure prompt execution of documents and performance of necessary actions by that party and/or its related third parties to fully apply and enforce the Contract.
10.4 Entire Agreement: Subject to clause 8.1, the Contract is the only agreement, arrangement, understanding and commitment between the parties concerning its subject matter, excluding all pre-contractual statements not expressly included in writing in the Contract.
10.5 Changes: The parties must agree in writing to change the Contract for such change to be binding and enforceable.
10.6 Enforcement:
(a) No third parties can enforce the Contract under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
(b) The parties deem the Contract to be fair and reasonable and intend its full enforceability. If any part is invalid: (i) the parties will collaborate to modify (or, as a last resort, remove) that part while preserving the parties’ commercial intent, and (ii) the remainder of the Contract remains valid and enforceable.
(c) Granting time or delaying enforcement doesn't waive rights or remedies. Waivers must be written to be valid.
(d) Each party's rights and remedies apply independently without prejudice to each other. Rights and remedies under the Contract are cumulative and repeatable.
(e) Rights or remedies under the Contract cannot be assigned without the express prior written consent of all the parties.
10.7 Confidentiality: The parties will keep the content of the Contract (and previous versions), as well as related disputes, settlements, communications and dealings between the parties, confidential for the Contract's duration plus 60 months. However, disclosure is allowed: (i) if required by law, (ii) for information shared with employees or advisers (with confidentiality obligations) for Contract application or enforcement, (iii) for information already public, or (iii) if disclosure occurs with express written consent from all parties with applicable confidentiality rights concerning that disclosure.
10.8 Intellectual Property Rights: As between the parties all trademarks, patents, design rights, copyright and other intellectual property rights of any kind concerning the Goods (or any drawings, sketches, quotations and other documents from the Seller) remain with the Seller or its licensors. Transfer in title in the Goods does not transfer such intellectual property rights. You shall indemnify us against all Losses suffered or incurred by us in connection with any allegation or claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with any infringement of the Seller’s or its licensor’s intellectual property rights. This clause 10.8 shall survive termination of the Contract.
10.9 No Derogatory Statements: Each party will not make any statements or comments about the other party, to any third party, on any online or offline forum/platform or in any other way - in each case that can reasonably be considered to be defamatory, derogatory or (even if true) deliberately or negligently designed or intended to harm the reputation or commercial success of the other party.
10.10 Interpretation: "will," "shall," and "must" have the same meaning. Headings or sub-headings don't affect the Contract’s interpretation. If the Contract is translated, the original English version shall prevail and apply. References to legislation include all respective updates and replacements, and all respective subordinate legislation. Singular words include the plural, and vice versa. Where a party is prohibited or restricted from doing something under the Contract, such party will also be deemed to ensure that such thing is not done with, through or for any other person. Any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to writing or written includes email and any document signed in wet/ink form or through e-signature on a platform like DocuSign.
10.11 Notices: The parties keep each other informed of their contact details. Notices must be given in writing and in English. Notices sent by post or given by hand delivery must go to the recipient's latest postal address. Notices sent by email must go to the recipient’s latest email address. Notices are deemed served: (i) 72 hours after posting, (ii) 1 hour after confirmed email dispatch (if emailed by 4 pm on a Business Day) or by 9 am on the next Business Day (if emailed after 4 pm or on a day other than a Business Day), or (iii) immediately, for hand delivery. The rules in clause 10.11 do not apply to service of formal legal proceedings.
10.12 Signatures: The Contract may be signed in counterparts. Signatures can be wet/ink or electronic. Emailed or faxed signatures are valid if sent with the complete Contract.