HYMIX General Terms
In these conditions:
“Company” means HYMIX Limited, company number (2061079).
“Contract” means the contract between the Company and the Purchaser for the supply of Goods and/or Services in accordance with these conditions
“Goods” means the goods supplied by the Company to the Purchaser pursuant to these conditions
“Order” means the written order for Goods and/or Services placed by the Purchaser with the Company
“Order Acknowledgement” means the Company’s written acceptance of the Purchaser’s Order
“Purchaser” means the person, firm or company to whom Goods and/or Services are supplied
“Services” means the services supplied by the Company to the Purchaser pursuant to these conditions
2. EXISTENCE OF CONTRACT
2.1 Any written quotation or estimate provided by the Company shall constitute an invitation to treat and no binding contract shall be created by the placing of an Order by the Purchaser unless and until the Company has sent an Order Acknowledgement to the Purchaser.
2.2 All quotations, offers and tenders are made, and all Orders are accepted by the Company subject to these conditions. Except as otherwise provided herein, all other terms, conditions or warranties are excluded from any contract between the Purchaser and the Company including any terms and conditions which the Purchaser may purport to apply under any Order or similar document. All Orders for Goods and/or Services shall be deemed to be an offer by the Purchaser to purchase the Goods and/or Services pursuant to these conditions. Acceptance or delivery of the Goods or performance of the Services shall be deemed conclusive evidence of the Purchaser’s acceptance of these conditions.
2.3 No particulars contained in any advertising matter, catalogues or other publications supplied by the Company nor any verbal representation by any employee or agent of the Company shall be part of the Contract nor shall they be treated as constituting any representation on the part of the Company.
2.4 The Purchaser shall be responsible for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Purchaser, and for giving the Company any necessary information relating to the Goods and/or Services within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3. AMENDMENTS AND CANCELLATION
3.1 No alterations or modifications to these conditions shall be binding on the Company unless expressly accepted or varied in writing by an authorised officer of the Company.
3.2 Cancellation of any Order cannot be made without the Company’s consent in writing. In the event of an agreed cancellation the Purchaser shall indemnify the Company against all losses, including the Company’s loss of profits, liabilities and expenses of whatever nature incurred by the Company arising directly or indirectly from such cancellation.
4.1 Unless otherwise stipulated by the Company, the price of the Goods and/or Services shall be the Company’s quoted price or, where no price as been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of acceptance of the Order. Where the Goods are supplied for export from the United Kingdom, the Company’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Purchaser, after which time they may be altered by the Company without giving notice to the Purchaser.
4.2 The Company reserves the right, by giving notice to the Purchaser at any time before delivery, to increase the price of the Goods and/or Services 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 and/or Services which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions.
4.3 Unless otherwise agreed in writing between the Purchaser and the Company, all prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company’s premises, the Purchaser shall be liable to pay the Company’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Purchaser shall be additionally liable to pay to the Company.
4.5 At the Company’s discretion, the Company may offer discounts to the Purchaser from time to time in relation to any quoted or listed prices.
5.1 Unless otherwise agreed in writing, the Company shall be entitled to invoice the Purchaser for (1) the price of the Goods prior to, on or at any time after delivery of the Goods; and (2) the price for the Services prior to or at any time after performance of the Services.
5.2 The Purchaser shall pay the price of the Goods and Services in Sterling within 30 days of the date of the Company’s invoice. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Purchaser fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries of Goods or performance of Services; and
5.3.2 charge the Purchaser interest (both before and after any judgment) on the amount unpaid, at the rate of 3 per cent per annum above National Westminster Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 OnlineOrders: Our website is designed to guide you through the steps you need to take to place a parts order with us. Our order process allows you to check and amend any errors before final submission. Please take the time to read and check your order at each page of the order process (referred to in clause 2.4). Whilst we endeavour to make it only possible to order an item if it is stock, due to the nature of trade there may be circumstances where an order nonetheless proceeds.
5.4.1 Your offer to buy: When you confirm and pay for your order, you offer to buy the Products at the prices indicated including any delivery charges that apply to your purchase.
5.4.2 Acknowledgement of receipt of order: After placing an order, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in the paragraph below.
5.4.3 Acceptance of order: We will confirm our acceptance of your order by sending you an email that confirms that the Products have been dispatched (Dispatch Confirmation). The Contract between us will only be formed when we send you the Dispatch Confirmation.
5.4.4 If we cannot accept your order: If we are unable to supply you with a Product, for example because that Product is not actually in stock or no longer available or because of an error in the price or description on our site, we will inform you of this by e-mail or by phone and we will not process your order. If you have already paid for the Products, we will refund you the full amount as soon as possible.
6. CARRIAGE AND DELIVERY
6.1 Unless otherwise agreed in writing delivery of the Goods shall take place at the Company’s premises or at such other location as may be agreed by the Company.
6.2 Time for delivery or performance is given as accurately as possible but is not guaranteed and time of the same is not of the essence of the Contract.
6.3 The Company will endeavour to complete delivery of the Goods and/or performance of the Services within the agreed time and if no time is agreed, within a reasonable time.
6.4 The Company reserves the right to deliver the Goods and perform the Services in instalments in any sequence. Where the Goods or Services are delivered in instalments, the Contract shall become severable and each instalment shall be deemed to be the subject of a separate contract.
6.5 Where the Company has notified the Purchaser that the Goods are awaiting collection or are ready for despatch and Purchaser fails to arrange for such collection or delivery within a reasonable time, the Company may at its discretion arrange for such Goods to be delivered to the Purchaser who shall remain at all times liable for any costs and expenses incurred by the Company as a result thereof.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Purchaser:
7.1.1 in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Purchaser that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Purchaser
wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Purchaser for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Purchaser and third parties, and properly stored, protected and insured and identified as the Company’s property, but the Purchaser shall be entitled to resell or use the Goods in the ordinary course of its business. The Company reserve the right to inspect the Purchaser’s premises at all reasonable times provided that they have given to the Purchaser reasonable prior notice to ensure that this clause is being complied with.
7.4 Until such time as the property in the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold) , the Purchaser shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company
and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the Goods are stored and repossess and then resell the Goods.
7.5 The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Purchaser does so all moneys owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8.1 Subject to the conditions set out below the Company warrants that:
8.1.1 the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 18 months from the date of despatch or 12 months from delivery, whichever is the first to expire; and
8.1.2 the Services will be provided using reasonable skill and care.
8.2 The above warranty is given by the Company subject to the following conditions:
8.2.1 the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Purchaser;
8.2.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
8.2.3 the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods and/or Services has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
8.3 Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Purchaser which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
8.5 In the event of any breach of the warranty given at clause 0, the Company shall be entitled to repair or replace the Goods (or the part in question) or re-perform the Services (as applicable) free of charge or, at the Company’s sole discretion, refund to the Purchaser the price of the Goods and/or Services in question (or a proportionate part of the price), but the Company shall have no further liability to the Purchaser.
8.6 Should the Purchaser reject the Goods the Purchaser must return them to the Company’s premises within five working days of informing that Company that the Goods have been rejected.
9.1 The Purchaser shall at all times act in accordance with all statutory or regulatory enactments relating to the Goods and/or Services. The Purchaser shall indemnify the Company against any liability incurred due to the breach of this clause 9.1.
9.2 The Purchaser shall at all times adhere and comply with the Company’s maintenance schedules and the specifications overleaf relating to the Goods.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Where Goods are manufactured to the Purchaser’s design and/or specifications the Company will retain all or any drawings, designs or other documents which are supplied to the Company by the Purchaser under the Contract unless agreed otherwise.
10.2 The Purchaser warrants that any designs or specifications supplied to the Company under these conditions do not infringe any confidential information, patent, registered design, trade mark, copyright or other intellectual property rights.
10.3 The Company shall be entitled to vary any design or specification provided by the Company or the Purchaser as it considers necessary in the circumstances, provided always that such variation does not materially affect the quality or performance of the Goods and/or Services.
10.4 Any descriptions/specifications, designs and/or drawings created, supplied or given by the Company shall remain the property of the Company and any intellectual property rights subsisting therein shall at all times remain vested in and remain the property of the Company.
11. LIMITATION OF LIABILITY
11.1 Notwithstanding anything to the contrary in these conditions the Company’s liability to the Purchaser:
11.1.1 for death or personal injury caused by the negligence of the Company, its employees, agents or sub-contractors;
11.1.2 under Part 1 of the Consumer Protection Act 1987;
11.1.3 due to any breach by the Company of conditions as to title or warranty as to quiet possession; or
11.1.4 for fraud (including without limit, fraudulent misrepresentation)
shall not be limited (but nothing in this clause confers any right or remedy upon the Purchaser to which it would not otherwise be entitled).
11.2 This clause 11 has continuing effect after termination of this Agreement.
11.3 Subject at all times to clause 11.1 and whether or not the Company has been advised of the possibility of such loss, the Company shall not be liable in contract, tort or otherwise howsoever arising for any claim, damage, loss or costs in respect of:
11.3.1 any losses special to the Purchaser;
11.3.2 any direct loss of profits;
11.3.3 any direct loss of turnover;
11.3.4 any direct loss of sales;
11.3.5 any direct loss of revenue;
11.3.6 any direct or inconsequential loss or damage howsoever caused including without limitation;
(a) any losses special to the Purchaser;
(b) any loss of profits;
(c) loss of anticipated profit including loss of profits on contracts;
(d) loss of the use of money;
(e) loss of turnover;
(f) loss of sales;
(g) loss of revenue;
(h) loss of anticipated savings;
(i) loss of business;
(j) loss of opportunity;
(k) loss of goodwill;
(l) loss of reputation; and/or
(m) loss of data
and for the avoidance of doubt, the sub-clauses of this clause 0 are intended by the parties to be severable.
11.4 Without prejudice to the other provisions of this clause 0, and subject to Clause 11 the Company’s liability, whether in respect of one claim or the aggregate of various claims, shall not exceed the price of the Goods and/or Services (as applicable).
11.5 The price of the Goods and/or Services is based on the assumption that the liability of the Company is as set out herein. The Purchaser is advised to insure against any risk not accepted by the Company.
12.1 If any claim is made against the Purchaser that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the
use of any drawing, design or specification supplied by the Purchaser, the Company shall indemnify the Purchaser against all loss, damages, costs and expenses awarded against or incurred by the Purchaser in connection with the claim, or paid or agreed to be paid by the Purchaser in settlement of the claim, provided that:
12.1.1 the Company is given full control of any proceedings or negotiations in connection with any such claim;
12.1.2 the Purchaser shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
12.1.3 except pursuant to a final award, the Purchaser shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
12.1.4 the Purchaser shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Purchaser may have in relation to such infringement, and this indemnity shall not apply to the extent that he Purchaser recovers any sums due under such policy or cover (which the Purchaser shall use its best endeavours to do);
12.1.5 the Company shall be entitled to the benefit of, and the Purchaser shall accordingly account to the Company for, all damages and costs (if any) awarded in favour of the Purchaser which are payable by, or agreed with the consent of the Purchaser (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
12.1.6 without prejudice to any duty of the Purchaser at common law, the Company shall be entitled to require the Purchaser to take such steps as the Company may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Company is liable to indemnify the Purchaser under this clause.
13.1 The Company shall be entitled forthwith to terminate any Contract between it and the Purchaser by written notice if the Purchaser fails to pay any invoice in accordance with these conditions or the Purchaser commits any continuing or material breach of these conditions or makes any composition with its creditors or suffers any distress or execution to be levied upon its assets or is wound up either compulsorily or voluntarily or suffers a receiver of any of its assets to be appointed or otherwise ceases or threatens to cease to carry on business.
13.2 If for any reason the completion of the Contract, the delivery of the Goods or performance of the Services is in the Company’s view rendered impracticable the Company may terminate the Contract by written notice to that effect. Thereupon the Purchaser will pay to the Company such proportionate sum under the Contract of any Goods or Services delivered prior to such notice.
14. FORCE MAJEURE
The Company shall not be liable for failure to deliver or delay in the delivery of the Goods pr performance of the Services for any reason whatsoever outside the reasonable control of the Company, (including, without limitation, strikes, riots, lock-outs or other industrial action, war, government requisitions of any kind, suspension or loss of means of transport, non-availability to the Company of supplies, legislation or regulations of any kind or Act of God). Any such failure or delay shall not affect the obligation of the Purchaser to pay for the Goods already delivered or Services already performed.
15. SET OFF AND COUNTERCLAIM
The Purchaser shall not be entitled to withhold payment of any invoice by reason of any right of set-off or counterclaim which the Purchaser may have or allege to have or for any reason whatsoever.
16.1 Any notice required to be served pursuant to this Contract shall be served on the Company at its registered office address or such other address as the Company may from time to time notify to the Purchaser and on the Purchaser at the address notified to the Company by first class registered post, registered air mail or by telex or facsimile.
16.2 Any such notice shall be deemed to have been served in the case of a destination in the UK two days after the date of despatch and seven days after the date of despatch to any other destination and in the case of despatch by telex or facsimile when the addressee’s telex of fax machine acknowledges receipt thereof.
Any provision or term of these conditions which is or may be void or unenforceable shall to the extent of such invalidity be deemed severable and shall not affect any other provision or term hereof.
Failure by the Company at any time to enforce any of these conditions shall not be construed as a waiver by the Company of such conditions or any other conditions and the Company shall be entitled to enforce any such breach at any time. Waiver of one or more of these conditions by the Company shall in no way affect the validity and/or enforceability of any other condition herein.
The Purchaser may not assign, sub-contract or in any way dispose of its rights or obligations under the Contract without the prior written consent of the Company.
20. PRIVITY OF CONTRACT
This Contract is intended and agreed to be for the benefit solely of the parties hereto and their lawful successors and permitted assigns and is not intended to create any right enforceable by any other person.
21. LAW AND JURISDICTION
The Contract shall be governed and interpreted according to the laws of England and shall be subject to the jurisdiction of the English courts. Nothing in this clause shall limit the right of the Company at its sole discretion to bring proceedings in connection with this Contract in any other court of competent jurisdiction.