UK TERMS & CONDITIONS OF SALE
Hunter Boot Limited (the "Company")
1.1. All rates and prices quoted, all Goods supplied and all orders received by the Company are quoted, supplied and received subject to the following Conditions (including this Condition) which shall form part of any contract (the "Contract") between the Company and the Buyer for the sale to the Buyer of the Goods.
1.2. The provisions of the Contract constitute the entire agreement between the Company and the Buyer.
1.3. In these Conditions: "the Company" means Hunter Boot Limited of 36 Melville Street, Edinburgh EH3 7HA, Scotland UK, its successors and assignees.
"Buyer" means the person(s), firm or company from whom an order to supply Goods is accepted by the Company.
"Conditions" means the standard terms and conditions of sale as set out in this document.
"Goods" means goods which are the subject of the Contract and shall include, where the context so admits, any service provided by the Company. "Order" means the order placed by the Buyer for the supply of the Goods from the Company.
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
"Reserved Territories" means Switzerland and all EEA countries with the exception of the UK, as those countries are either exclusively reserved to the Company or to a third party.
1.4. References to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.5. References to the singular include the plural.
1.6. No variation of or addition to these Conditions shall be effective unless agreed in writing by the Company, in particular, these Conditions shall, unless otherwise agreed in writing by the Company, prevail over any standard conditions of the Buyer and the fact that such standard Conditions may be included or referred to in any writing which forms part of the Contract shall not of itself be indicative of such agreement.
1.7. Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
1.8. No order placed by the Buyer shall be deemed to be accepted by the Company until the Company issues a written acknowledgement of order or (if earlier) the Company delivers the Goods to the Buyer. Orders are accepted only on the basis that these Terms apply to the order.
1.9. No cancellation or change in any Order which has been accepted by the Company can be made by the Buyer without the prior written agreement of the Company. Where the Company gives its prior written agreement to the Buyer to cancel an Order before it is loaded for delivery, the Company reserves the right to charge the Buyer a fee of 10% of the net invoice price of the order (including VAT where applicable) to cover the administrative costs incurred by the Company.
1.10. Any quotation is given on the basis that no contract will come into existence until the Company dispatches an acknowledgement of Order to the Buyer. Any quotation is valid for the period specified therein (or if none is specified then a period of 30 days only from its date), provided that the Company has not previously withdrawn it.
RISK The risk of loss or destruction of, or damage to, the Goods shall pass from the Company to the Buyer at the time of delivery, or at such other time as is agreed in writing by the parties. If the Buyer wrongly fails to take delivery of the Goods, risk shall pass at the time when the Company has tendered delivery of the Goods.
3.1. The property in the Goods shall not pass to the Buyer until payment has been made in full for:
3.1.1. the Goods; and
3.1.2. any other sums due from the Buyer to the Company on any other account whatsoever.
3.2. Payment shall not be treated as having been made until the Company has received cleared funds.
3.3. Until property in the Goods passes, the Buyer shall keep the goods free from any lien, charge, or encumbrance and the Company may at any time require the Goods to be returned to it by the Buyer. If such requirement is not met within seven days the Company may retake possession of the Goods and may enter any premises of the Buyer or of any third party where the goods are stored for that purpose. Such return or retaking of possession shall be without prejudice to the obligation of the Buyer to purchase the Goods.
3.4. Until property in the Goods passes the Buyer shall:
3.4.1. hold the Goods on a fiduciary basis as the Company's bailee;
3.4.2. store the Goods in such a way that they are identifiable as the property of the Company and separate from all other goods in the possession of the Buyer or such third party;
3.4.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
3.4.4. maintain the Goods in satisfactory Condition insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
3.4.5. hold the proceeds of the insurance referred to in Condition 3.4.4 on trust for the Company in a separate identified account and not mix them with any other money, nor pay the proceeds into an overdrawn bank account and it shall at all times be identifiable as the Company's monies; and
3.4.6. not resell the Goods except to the Buyer's clients in the ordinary course of the Buyer's business as a fiduciary and trustee for the Company. In the event of any resale by the Buyer of the Goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's monies.
3.5. Without prejudice to any other right available, the Buyer's right to possession of the Goods shall terminate immediately if:
3.5.1. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
3.5.2. the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
3.5.3. the Buyer encumbers or in any way charges any of the Goods.
4.1. The Company reserves the right to make any change in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements.
4.2. All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
SUPPLIES AND ACCOUNTS
5.1. Payment of the price for the Goods is due and payable on the twentieth day of the month following the month in which the Goods are delivered or deemed to be delivered.
5.2. The Company may allow settlement discount for prompt payment in accordance with terms agreed with the Buyer at the time of the Order. Settlement discount will not be allowed on overdue accounts.
5.3. In the event of failure by the Buyer to pay any sum due under the Contract or any sum due under any other contract between the Company and the Buyer or in the event that the Company reasonably anticipate such failure then the Company shall be entitled immediately to refuse or limit the amount of credit given to the Buyer.
5.4. If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% per annum above the base lending rate from time to time of the Royal Bank of Scotland, accruing on a daily basis until payment is made, whether before or after any judgement.
5.5. Time for payment shall be of the essence.
5.6. The Company reserves the right to claim interest and fixed sum compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
5.7. The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
6.1. Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the Buyer's place of business.
6.2. Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
6.3. If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
6.3.1. risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company's negligence);
6.3.2. the Goods will be deemed to have been delivered; and
6.3.3. the Company may store the Goods until delivery whereupon the Buyer will be liable for all related risk, costs and expenses (including without limitation storage and insurance).
6.4. If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
6.5. The Company may deliver the Goods by instalments and each instalment shall be treated as a separate Contract so that failure to deliver or defect in one or more instalment shall not entitle the Buyer to reject the other instalments.
6.6. Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
6.7. The Goods may not be returned by the Buyer to the Company, for any reason, without the prior written agreement of the Company. In the event that the Company, at its sole discretion, agrees that the Buyer may return the Goods to the Company, the Buyer will be responsible for and bear the costs of delivering the Goods to the Company, repackaging the Goods to the Company's reasonable satisfaction and complying with all provisions of any Company returns policy which may be in place from time to time.
6.8. The Company or any related companies shall have the right to cancel all or any contracts with the Buyer or withhold delivery of any Goods if:-
6.8.1. the Buyer fails to pay any monies owing to the Company or any related companies by the due date; 6.8.2. the Buyer commits any breach
of any contract or policy which may be in place from time to time with the Company or any related companies;
6.8.3. the Buyer compounds with or executes an assignment for the benefit of its creditors or commits any act of bankruptcy or goes into liquidation or has a receiver, administrative receiver or administrator appointed over all or part of its assets or has a third party levy distress on their property, or suffers any similar or analogous act.
6.9. In the event of delivery being withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.
7.1. The Company or any related companies shall have the right to cancel all or any contracts with the Buyer or withhold delivery of any Goods if:-
7.1.1. the Buyer fails to pay any monies owing to the Company or any related companies by the due date;
7.1.2. the Buyer commits any breach of any contract with the Company;
7.1.3. the Buyer commits any breach of any policy or guidelines which may be put in place by the Company from time to time;
7.1.4. the Buyer compounds with or executes an assignment for the benefit of its creditors or commits any act of bankruptcy or goes into liquidation or has a receiver, administrative receiver or administrator appointed over all or part of its assets or has a third party levy distress on their property, or suffers any similar or analogous act.
7.2. In the event of delivery being withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.
7.3. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
All prices for the Goods shall be exclusive of any value added tax and are quoted subject to alteration without notice and all Goods are invoiced at prices current on the day of delivery or deemed delivery unless otherwise agreed between the parties.
If a sufficient quantity of Goods is to be supplied under the Contract then, unless otherwise agreed between the parties, such Goods, if consigned to destinations in the United Kingdom, will be carriage paid by the Company by the cheapest route. The Company shall decide, at its sole discretion, what constitutes sufficient quantity of Goods for the purpose of this Clause. If at the request of the Buyer the Company agrees to other arrangements, then all the costs or charges of such arrangements will be payable by the Buyer when it is due to pay for the Goods.
NON-DELIVERY AND/OR DISCREPANCIES
10.1. When signing for deliveries the Buyer must state clearly on the delivery note any damage or shortages.
10.2. The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
10.3. Loss or non-delivery must be notified in writing to the Company and to the carrier within seven (7) days of the despatch date on the advice note or invoice.
10.4. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
HEALTH AND SAFETY AT WORK, ETC. ACT 1974
The Buyer undertakes to take such specified steps as may be necessary to ensure, so far as reasonably practicable, that the Goods will be safe and without risk to health when properly used. The Buyer acknowledges that the Company are freed and relieved from any duty under Section 6(1)(a) of the Health and Safety at Work, etc. Act 1974, as the act may be amended or replaced.
12.1. The Company warrants that (subject to the other provisions of these Conditions) upon delivery, the Goods will:
12.1.1. be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
12.1.2. be reasonably fit for their purpose; and
12.1.3. be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
12.2. The Company shall not be liable for a breach of any of the warranties in Condition 12.1 unless:
12.2.1. the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
12.2.2. the Company is given a reasonable opportunity after receiving the notice to examine such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Buyer's expense for the examination to take place there.
12.3. The Company shall not be liable for a breach of any of the warranties in Condition 12.1 if:
12.3.1. the Buyer makes any further use or disposes of such Goods after giving such notice; or
12.3.2. the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
12.3.3. the Buyer alters or repairs such Goods without the written consent of the Company.
12.4. Subject to Conditions 12.2 and 12.3, if any of the Goods are shown to the Company's reasonable satisfaction not to conform with any of the warranties in Condition 12.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer's expense, return the Goods or the part of such Goods which is defective to the Company.
12.5. If the Company complies with Condition 12.4 it shall have no further liability for a breach of the warranty in Condition 12.1 in respect of such Goods.
12.6. Notwithstanding sub-Clause 12.1 above, the Company may from time to time agree to sell Goods manufactured by it which are stated to be sub-standard quality. Such Goods are sold as is and all warranties are excluded to the fullest extent permitted by law.
12.7. Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
13.1. Subject to Condition 12, the following provisions of this Condition 13 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
13.1.1. any breach of these Conditions; and
13.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
13.2. All warranties, Conditions, representations, undertakings and other terms concerned with the Goods whether express or implied by statute or common law, custom, usage or otherwise (save for the Conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded except that nothing in these Conditions seeks to exclude or limit a party's liability for fraudulent misrepresentation.
13.3. Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or for fraudulent misrepresentation (the Buyer's attention is drawn to the provisions of Condition 13.4 below).
13.4. Subject to Conditions 13.2 and 13.3:
13.4.1. the Company'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 Contract price; and
13.4.2. the Company 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.
13.5. In the event of a transaction with a consumer, the consumer's statutory rights are not adversely affected.
14.1. The Company 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 Company including, without limitation, acts of God, governmental actions, war or national emergency, 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 180 days, the Buyer shall be entitled to give not less than 60 days notice in writing to the Company to terminate the Contract and in such circumstances the Buyer shall pay for all Goods supplied to the date of such termination, such payment to be made on or before the last day of the month following the month during which termination was effected.
14.2. If the Company is prevented from delivering part of the Goods by reason of any of the events specified in the Conditions, the Company shall deliver and the Buyer shall take and pay for such part of the Goods as the Company shall be able to deliver in accordance with the Contract. The Company shall be entitled to deliver the Goods in one or more consignments unless otherwise expressly agreed.
14.3. If the Company has insufficient stocks to meet all of its commitments, the Company may apportion available stocks to the Buyer at its sole discretion. The Company shall be entitled to make partial deliveries and failure to deliver part only of any order shall not entitle the Buyer to reject the Goods.
15.1. The headings in these Conditions are for convenience of reference only. They do not form part of the Contract and shall not affect its validity or construction.
15.2. If any provision of the Contract 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 of the Contract and the remainder of such provision shall continue in full force and effect.
15.3. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.4. The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The construction, validity and performance of all Contracts between the parties shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any other jurisdiction the Company deems appropriate.
17.1. All notices must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
17.1.1. (in case of notices to the Company) to its principal place of business as shown in condition 1.3; or
17.1.2. (in the case of notices to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
17.2. Notices shall be deemed to have been received:
17.2.1. if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays within the UK) after posting (exclusive of the day of posting);
17.2.2. if delivered by hand, on the day of delivery;
17.2.3. if sent by facsimile transmission on a working day prior to 4.00 p.m., at the time of transmission and otherwise on the next working day.
17.3. Notices addressed to the Company shall be marked for the attention of the Managing Director, Hunter Boot Limited, 36 Meville Street, Edinburgh EH3 7HA, Scotland.
18.1. The property and any copyright or other intellectual property rights in any documents or other materials, and any data or other information provided by the Company relating to the Goods shall, unless otherwise agreed in writing between the Buyer and the Company, belong to the Company.
18.2. The Buyer shall ensure that no trade mark or logo used on or in connection with any of the Goods or their packaging is added to, obscured, removed, defaced, altered or otherwise interfered with in any way.
18.3. Trade marks and/or logos applied to any of the Goods may be used in advertising material in retail outlets or in catalogues for the purpose only of promoting the retail sale of the Goods concerned and provided that the Company's prior written approval is obtained.
18.4. Except as permitted by clause 18.3 above the Buyer shall not make any use of any logo or trade mark owned or used by the Company (whether in connection with the goods or otherwise) or any part thereof for any purpose whatsoever.
19.1. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
19.2. The Company may assign the Contract or any part of it to any person, firm or company.
20.1. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these Conditions.
20.2. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
20.3. Unless otherwise agreed in writing between the Buyer and the Company, the Goods shall be delivered Ex Works and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
20.4. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Company's premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
20.5. Where the Goods are supplied for export from the United Kingdom the Company's relevant published price list shall apply.
20.6. Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Buyer in favour of the Company or, if the Company has agreed in writing on or before acceptance of the Buyer's order to waive this requirement, by acceptance by the Buyer and delivery to the Company of a bill of exchange drawn on the Buyer payable at sight to the order of the Company at such branch of Royal Bank of Scotland as may be specified in the bill of exchange.
20.7. The Company reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (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 the Company adequate information or instructions.
SALES OUTSIDE THE TERRITORY, BRAND GUIDELINES AND ONLINE GUIDELINES
21.1 The Company requires the Buyer to adhere to its brand guidelines and online guidelines as notified to customers from time to time.
21.2 The Buyer shall not:
(a) sell any Goods outside the EEA and/or Switzerland; or
(b) actively approach or solicit customers, nor make active sales of the Goods, to any wholesale or retail account in the Reserved Territories.
21.3 Any breach of this clause 21 by the Buyer shall be deemed a material breach of the Contract.
© Hunter Boot Limited, 2014