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Terms & Conditions Of Sale

Last updated August 2018

Terms & Conditions Of Sale                                Last updated August 2018

 

1. Interpretation 

  • `the Seller' shall mean Hitek Electronic Materials Ltd with registered office at 15 Wentworth Road, South Park Industrial Estate, Scunthorpe DN17 2AX
  • `the Buyer' shall mean the person, firm or Seller with whom the Contract is made. ‘the Contract' shall mean the contract for the sale of Goods between the Seller and the Buyer.
  • 'the Goods' shall mean the goods or any part thereof sold hereunder together with any replaced goods.

2. Contract

These conditions are the only conditions upon which the Seller is prepared to deal with the Buyer and they shall govern this Contract to the entire exclusion of any other express or implied conditions and all other items and conditions referred to the Buyer or contained in any order, acceptance of estimate or quotation, or otherwise brought to the notice of the Seller are hereby excluded. Quotations issued by the Seller are not offers capable of acceptance so as to make a binding contract. All orders placed with the Seller require its acceptance before any contract arises.
No servant or agent of the Seller has any authority to make any representation, or to give any warranty relating to the Goods, or to agree to any variation of, or addition to, these terms and conditions, unless such representation, warranty, variation or addition is expressed in writing and signed on behalf of the Seller by a Director or other person duly authorised by the Seller.
These conditions, together with any special terms and conditions specified in the Acceptance of Order or any drawings, plans, or other documents referred or attached to the Acceptance of Order, embody the entire understanding of the parties and supersede any prior or contemporaneous agreement, representation or understanding in respect of the supply of the Goods.
The Contract between the Seller and the Buyer will be concluded upon the Seller despatching an Acceptance of Order to the Buyer.

3. Specification

  • The description and/or illustration of any Goods contained in any brochure, price lists, catalogues or other sales material or shown on the Seller's website (or given to the Buyer over the telephone, by email or by fax) are intended to be an illustration only and shall not form part of the Contract.
  • The Seller shall not be liable for any variations in any specification or description of the Goods which do not materially affect the specification, use or operation of the Goods. The Seller shall be entitled to substitute any Goods ordered with goods of similar quality and capacity. The Seller reserves the right to make any changes in the specification so as to conform with any applicable safety or other statutory requirements.

4. Prices & Payment

  • All prices quoted are ex-works Scunthorpe unless otherwise specified on the Seller's Acceptance of Order and are those prevailing at the time of conclusion of the Contract. Such prices shall only apply if delivery takes place within thirty days of conclusion of the Contract, unless otherwise agreed. Thereafter the prices ruling at the date of delivery shall apply.
  • The Seller reserves the right, by giving notice to the Buyer at any time before delivery (or during delivery where the Contract is being performed in stages or over a period of time), to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign currency exchange fluctuation, significant increase in the cost of labour, material or other costs), 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 Seller or his agent or failure of the Buyer or his agent to give the Seller adequate information or instructions.
  • Unless otherwise specified, all prices quoted are exclusive of VAT and any other relevant taxes.
  • Credit accounts requests are subject to any credit/reference checks which may be required. The full invoice value (for credit account customers) shall be paid in full not later than thirty (30) days after the date of the Seller's invoice. New customers may be subject to PROFORMA Invoicing. Stocked items will remain unallocated until proforma is paid.
  • Time of payment of any invoice shall be of the essence of the Contract. Any late payment of invoices will attract interest and compensation in accordance with the Late Payment of Commercial Debt Regulations (as amended from time to time).
  • All amounts due to the Seller in respect of the supply of the Goods shall be paid in the manner and at the price specified in the invoice for the Goods. The Buyer shall not be entitled to make any set-offs, compensation or counterclaim without the Seller's written consent. Payment of an invoice must be made when due notwithstanding that property in the Goods has not passed to the Buyer. 4.7 If, where the price payable in respect of the Goods is due otherwise than in advance of or on delivery of the Goods, in the reasonable opinion of the Seller the credit rating of the Buyer becomes unsatisfactory prior to delivery, or if the Buyer fails to perform or observe any obligations on his part to be performed or observed under this or any other Contract made with the Seller, or if the Buyer should go into liquidation or if a receiver of the Buyer's undertaking or assets should be appointed, or if the Buyer should become bankrupt or make a composition with its creditors, or if execution or distress be levied upon any property or assets of the Buyer, or if the Buyer fails to make timeous payments in accordance with these conditions, the Seller shall be entitled either at its discretion to delay delivery of the Goods until payment therefore is made by the Buyer or until such obligations are duly performed or observed or until the Seller feels it fit in the light of the other such events as above, or by notice in writing to the Buyer treat the Contract as repudiated by the Buyer and in such event the Seller shall not be liable for any loss whatsoever incurred as a result but shall be entitled to seek damages for any loss suffered by it as a result.

5. Delivery & Risk

  • Delivery is to take place either ex-works Scunthorpe to an agent or carrier of the Buyer or by transport to the Buyer's stipulated address, as set out in the Acceptance of Order. The risk of damage to or destruction of the Goods shall pass to the Buyer upon delivery. Where delivery is delayed due to any act or omission of the Buyer for whatever reason, such risk shall pass on the date on which delivery would have taken place but for such act or omission.
  • Time of delivery shall not be of the essence and delivery dates are approximate only, Whilst every effort will be made to deliver on the day or date specified in the Acceptance of Order, the Seller shall be under no liability for loss occasioned by delay in completing the Contract or for loss arising from delay in transit and delivery and delay in delivery shall not entitle the Buyer to cancel the order and terminate the Contract unless the Seller has accepted in writing a firm delivery date with time specifically expressed to be of the essence of the Contract.
  • As the Seller's deliveries are dependent on deliveries received from other suppliers, the Seller accepts no responsibility for the accuracy of any delivery to the Buyer. Due to the nature of the Seller's products and the industry specific conditions, the quantities stipulated in the Contract may vary by plus/minus 10%. Whilst credit will be given for any delivery shortage, the Seller accepts no responsibility for any loss caused by any such shortage.
  • The Seller may elect to deliver the Goods in installments and no failure by the Seller in respect of any one or more installments shall entitle the Buyer to treat the Contract as a whole as repudiated.
  • If the Buyer fails to take delivery of the Goods (or any part(s) thereof) on the due date, or to give adequate instructions to enable the Goods to be delivered on the due date, the Seller may issue a written notice to the Buyer stating that risk in the Goods shall be deemed to have passed to the Buyer on the date delivery was due. Thereafter the Buyer shall store the Goods at the Buyer's expense but, regardless of whether or not a written notice has been given to the Buyer by the Seller, the Buyer shall indemnify the Seller in respect of all losses, costs, claims, damages, and expenses incurred by the Seller arising as a result of the Buyer's failure or breach.

6. Retention of Title

This provision shall apply to all and any Goods supplied to the Buyer by or on behalf of the Seller:

  • Legal and beneficial ownership and title in and to the Goods shall not pass from the Seller to the Buyer until all monies due by the Buyer (or any of its associated subsidiary or holding companies) to the Seller under any Contract (and this includes the Seller's Conditions of Sale applicable to and forming part of any such Contract) between them, including any interest and charges, have been paid in full. Until such time as property and title in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from other goods at the premises of the Seller and free from any lien, charge or encumbrance and properly stored, protected and insured and identified as the Seller's property and shall allow (without requirement for any further written consent) the Seller unrestricted and immediate access to the place where the Goods are stored for the purposes of verifying that this has been done.
  • Until such time as property and title in the Goods passes to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller (or its employees or agents) or, at the Seller's sole discretion, forthwith to enter upon any premises or property of the Buyer or any third party where the Goods are stored (with the Buyer's express consent which is impliedly granted by these conditions becoming part of the Contract) and to repossess the Goods.
  • The Buyer shall not be entitled to pledge, or in any way charge by way of security, any quantity of the Goods which remains the property of the Seller but, if the Seller does so, all moneys owing by the Buyer to the Seller shall, without prejudice to any other remedy available to the Seller, forthwith become due and payable.
  • If the Buyer (being a Seller):
    compounds or enters into any composition or arrangement with its creditors or a proposal is made for a voluntary arrangement with its creditors or has a petition presented for the appointment of an administrator or an administrator is appointed or has a receiver or manager or administrator receiver appointed over all or any part of its assets or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or has a petition for its winding up or a winding up order made or is removed for any reason from the Register of Companies or the Buyer ceases, or threatens to cease, to carry on business or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, or
    If the Buyer (being an individual):
    enters into a deed or arrangement or makes any assignment for the benefit of or enters into any arrangement voluntarily or otherwise with his creditors either by composition or otherwise or makes or has made an application made for an interim order in connection with a proposal to creditors for a voluntary arrangement or has a petition presented for his bankruptcy or is made bankrupt or fails to satisfy any distress execution or judgment within seven days of its being levied against his property or made as the case may be or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel any contract or suspend any further deliveries under any contract without any liability to the Buyer, and if the Goods have been delivered but not paid for in full, the legal and beneficial title to the Goods remains with the Seller and no receiver or liquidator of the Buyer shall sell the Goods. In these circumstances, the Buyer hereby accepts and consents that the Seller shall be entitled to enter any premises or property where the Goods are located and repossess the Goods.
  • Until such time as property and title to the Goods passes to the Buyer, the Buyer shall not be entitled to in any way annex, combine or integrate the Goods to or with any goods or property (whether his own or that of a third party) without the Seller's prior express written consent.
  • The Seller retains and reserves the legal and beneficial ownership and title in and to the Goods until the Buyer has paid for all and any of the goods supplied by the Seller to the Buyer and has repaid all other monies owed to the Seller regardless of how such indebtedness arose.
  • If the Buyer transfers property in the Goods (whether in its original form or as part of another product) to a third party prior to legal and beneficial ownership and title in and to the Goods passing to the Buyer (as set out in Clause 6(a) above), the Buyer does so as agent and bailee of the Seller and the Buyer must notify the third parry in writing at the time of sale of the fact that the Seller retains title in and to the Goods. Any monies received by the Buyer for the Goods from the third party are the sole property of the Seller until legal and beneficial ownership and title in the Goods has passed to the Buyer and all such monies shall be held by the Buyer in a separate, clearly identifiable account designated as containing monies owed to the Seller.
  • If the Buyer transfers property in the goods to a third party by way of a purported sale and following such transfer any of the events outlined in Clause 6(d) above occur (the Events), then the Buyer hereby acknowledges and agrees that this Clause 6 applies and that any monies still due for payment by the third party for the product sold at the time of the occurrence of any of the Events is the exclusive property of the Seller. The Buyer hereby agrees that the Seller at its sole discretion is entitled to collect such monies directly from the third party. Any monies already paid by the 3rd party to the Buyer (or its receiver, administrator, administrative receiver or liquidator) shall be held by the Buyer (or its receiver, administrator, administrative receiver or liquidator) as fiduciary agent of the Seller in a separate account and shall be paid to the Seller immediately on demand.

7. Quotations/Acceptance of Order

  • No cancellation or variation of an order by the Customer shall be accepted unless approved in writing by a Director or Departmental Manager of the Company and on such terms that the Customer shall indemnify the Company in full against all and any loss (including loss of profit), costs, damages, charges and expenses incurred by the Company as a result of such cancellation or variation.

8. Alterations & Improvements

  • The Seller may carry out without notice to the Buyer alterations or improvement in design, materials or methods of manufacture from time to time, and may substitute other reasonably similar parts for any proprietary or special part ordered by the Buyer which the Seller considers to be unprocurable, or unprocurable in sufficient quantities, or unprocurable in sufficient time or procurable with difficulty or at an excessive cost.
  • Further the Seller may supersede, materially alter or abandon the design or type of the Goods contracted for, and may substitute another design or type. In exercising this right, the Seller shall give written notice thereof to the Buyer and the Buyer may, within ten days after such notice is given, terminate the Contract by giving notice to the Seller. If the Contract is so terminated, the deposit, if any, shall be returned to the Buyer, but no other claim for loss or damage may be made.
  • If, in the opinion of the Seller, there is no design or type which could reasonably be substituted under sub-clause (b) of this Clause, the Seller's obligation to complete performance of the Contract shall be suspended until such time as a reasonable substitute therefore can be found and becomes available.

9. Cancellations

  • After acceptance by the Seller, orders shall not be subject to cancellation by the Buyer except with the Seller’s written consent and upon terms that will indemnify the Seller against all direct, incidental and consequential loss or damage.
  • Further the Seller may supersede, materially alter or abandon the design or type of the Goods contracted for, and may substitute another design or type. In exercising this right, the Seller shall give written notice thereof to the Buyer and the Buyer may, within ten days after such notice is given, terminate the Contract by giving notice to the Seller. If the Contract is so terminated, the deposit, if any, shall be returned to the Buyer, but no other claim for loss or damage may be made.
  • If, in the opinion of the Seller, there is no design or type which could reasonably be substituted under sub-clause (b) of this Clause, the Seller's obligation to complete performance of the Contract shall be suspended until such time as a reasonable substitute therefore can be found and becomes available.

10. Goods Not Conform To Contract

  • The Buyer shall be deemed to have examined the Goods on delivery thereof (time being of the essence) and to have satisfied itself that they conform to Contract. A claim that Goods are not in accordance with the Contract will not be accepted by the Seller unless notice in writing, specifying the alleged default and stating what is required of the Seller to remedy the alleged default, is given to the Seller within 3 days of delivery of the Goods.

11. Quantities

  • The Seller reserves the right to ship with +/- 5% of the quantities ordered.

12. Returns Policy

  • The Seller will not accept rejects or returns without prior material authorisation (RMA) number. The Seller must be informed by the Buyer of any rejects or returns within 21 days of receipt. Parts returned after this time may not be accepted by the Seller.
  • The Buyer must return the Goods to the Seller within 15 days after the Seller has authorised the return, together with the original purchase receipt in order to obtain (at the Seller’s option) a refund, obtain a credit note or replacement. Any Goods returned must be in undamaged, complete and “as new” condition (both in terms of the Goods and their packaging) otherwise the Seller is not required to provide a refund. The Seller reserves the right to impose a re-stocking charge on any returned items. Where a refund is granted, the Seller will refund the Buyer within 15 days of receipt of the Goods. Returns will only be accepted by the Seller if they are returned by the Buyer.
  • The Seller will offer a full refund to the Buyer for any Goods sold (provided full payment has been received) if such Goods are faulty, not as described by the Seller or in circumstances where the Goods do not do what the Seller advised they do.
  • The Buyer is entitled to cancel his purchase of the Goods without giving reasons within 15 days of delivery of the Goods. The Buyer must notify the Company in writing within 15 days of purchase if the Buyer wishes to return a product.
  • Where any part of Goods sold are custom made, the Goods cannot be returned and no refund will be given unless the Goods are faulty. In such circumstances it is the Buyer’s responsibility to prove faultiness beyond reasonable doubt before Goods are accepted by the Seller for return.

13. Export and Import Licenses

  • The Contract is contingent upon the Seller obtaining all export licenses and/or government approvals which may be required under applicable laws and regulations.  Prior to the date of shipment of the Goods, the Buyer shall obtain, at its sole cost, all import licenses and/or other government approvals which may be required by the country of importation.  Upon the Sellers request, the Buyer shall provide the Seller with copies of such import licenses and/or government approvals to evidence the Buyer's compliance with this Condition 10.  The Buyer shall defend, indemnify and hold the Seller harmless from any claim, loss, damage, fines, penalties, liability or expense incurred with regard to the Buyer's failure to comply with this Condition 10.

14. Limitation of Liability

  • The Seller's liability is restricted to any work he has carried out in relation to the Goods.
  • The Seller shall be under no liability:
    • in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
    • where any of the circumstances referred to in Clause 8.7(a) to (d) occur;
    • to the extent that the total price for the Goods has not been paid by the due date for payment;
    • where the Goods or parts, materials or equipment have not been manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer of the goods to the Seller;
    • for any consequential loss howsoever caused.
  • The Seller's liability howsoever arising shall not in any event exceed the total price for the Goods.
  • Subject as expressly provided in these conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
  • Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

15. Intellectual Property

  • If the Goods are manufactured to the design or specification of the Buyer, the Buyer will indemnify the Seller against all losses, costs, charges, expenses and damages which the Seller might suffer as a result of any claim or allegation that the Goods infringe the intellectual property rights of any other person or that the Goods do not comply with any legislation, regulations or requirements in force from time to time.

16. Force Majeure

  • The Seller shall not be liable or responsible for any loss or damage caused by delay in the performance or nonperformance of any of its obligations hereunder, including (but not limited to) delayed delivery or non-delivery, where the same is occasioned by any cause whatsoever that is beyond the Seller's reasonable control,` including but not limited to an Act of God, war, shipwreck, civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions or enactments of any kind; import or export regulations or prohibitions strike, lockout or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials including (but not limited to) oil, gas, coal, electricity or any other fuel or raw material, breakdown of machinery, fire or accident, non-availability or delay of vessels or transport. Should any such event occur the Seller at its option may cancel or suspend, or initially suspend then cancel, this Contract without incurring any liability whatsoever for any loss or damage thereby occasioned.

17. Drawings

  • 'Unless otherwise agreed in writing, all patterns, drawings, specifications, tools and other things produced by the Seller shall be and shall remain the property of the Seller and if the Buyer should have possession of any such items it shall, upon request from the Seller return them to the Seller forthwith. The Buyer may not utilise, reproduce or communicate knowledge or information of a confidential nature in respect of such items or in respect of or in connection with the Contract without the prior written consent of the Seller.

18. General

  • The Buyer shall not without the prior written consent of the Seller (whether in whole or in part) assign, transfer or sub-let the benefit or the burden of this Contract or any part thereof.
  • No right or license is granted by this Contract to the Buyer under any patent, copyright, registered design or other protection except the right to use or resell the Goods.
  • If any of these conditions or any part thereof is rendered or held to be void or unenforceable by any legislation or other law, it and the conditions as a whole shall be void or unenforceable to that extent only and no further and all other terms shall remain valid and fully enforceable.

19. Law

  • The construction, validity and performance of the Contract shall be governed by English law.

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