Conditions of Sale of CHX Products Limited – Issued 2012
The conditions set out below govern the contract for the supply of CHX Products Ltd products and override any other conditions. The contract constitutes the entire agreement between the parties. The purchaser acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of CHX Products Ltd which is not set out in the contract. Any samples, drawings, descriptive matter, or advertising produced by CHX Products Ltd and any descriptions or illustrations contained in the catalogues or brochures of CHX Products Ltd are produced for the sole purpose of giving an approximate idea of the goods described in them. They do not form part of the contract or have any contractual force. Except as set out in these conditions, any variation to the contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by CHX Products Ltd.
Terms: 30 days strictly nett. VAT will be added to all prices at the prevailing rate.
CHX Products Ltd reserves the right to amend all prices and specifications without prior notification, although every attempt will be made to give reasonable notice whenever possible. In particular, CHX Products Ltd reserves the right by notice given at any time before delivery to vary the price of the goods if after the date hereof there is:
(a) any increase or decrease in the total cost of such goods to CHX Products Ltd arising from any cause beyond the control of CHX Products Ltd;
(b) any request by the purchaser to change the delivery date(s), quantities or types of goods ordered; or
(c) any delay caused by any instructions of the purchaser or failure of the purchaser to give to CHX Products Ltd adequate or accurate information or instructions.
Carriage will be charged on all orders.
No exclusive or sole agencies or territorial or other restrictions are given or recognised for any town or territory.
CHX Products Ltd shall not be liable for: a. failure to perform any obligation hereunder if such failure is caused by circumstances beyond the control of CHX Products Ltd, or b. delay, howsoever caused in performing any obligation hereunder, nor for any costs, losses or damages howsoever arising from any such delay.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Each delivery shall be considered a separate transaction and the failure of any one delivery shall not affect the due performance of the contract.
If CHX Products Ltd fails to deliver the goods, its liability shall be limited to the costs and expenses incurred by the purchaser in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods.
All claims for damage to or partial loss of goods in transit must be submitted in writing to both carrier and seller within seven days of delivery. In the case of no-delivery of the whole consignment, claims must be submitted in writing to both the carrier and CHX Products Ltd within seven days of receipt by the purchaser (or purchaser’s agent) of notification of despatch of the goods. If CHX Products Ltd requires the purchaser to return any packaging materials to CHX Products Ltd, the purchaser shall make any such packaging materials available for collection at such times as CHX Products Ltd shall reasonably request. Returns of packaging materials shall be at the expense of CHX Products Ltd.
In the absence of claims within the terms mentioned above, the goods shall be deemed to have been delivered in accordance with the contract. Any dispute made in respect of invoices must be made in writing within fourteen days of the invoice date.
1All warranties, conditions and representations in respect of the goods (other than those implied under section 12 of the Sale of Goods Act 1979, section 7 of the Consumer Protection Act 1987 and those which are fraudulent or constitute fraudulent misrepresentations) are hereby expressly excluded and (save in respect of death or personal injury resulting from its negligence), CHX Products Ltd shall not be liable:
(a) to the purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract; and
(b) for any loss, injury or damage arising directly or indirectly from the use, application or storage of such goods.
The total liability of CHX Products Ltd to the purchaser in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the goods.
Without prejudice to the above, CHX Products Ltd will be prepared to consider claims concerning the quality of the goods provided that such claims are notified to CHX Products Ltd within seven days of the receipt of goods by the purchaser (or purchaser’s agent) and are limited to the value of the invoice value of the goods. The refills/inks etc supplied in writing instruments are subject to a maximum warranty of three months from the date of despatch from CHX Products Ltd.
These conditions are imposed on CHX Products Ltd by the manufacturers of such goods.
The purchaser may not cancel the contract without the written consent of CHX Products Ltd. No returns will be accepted without authorisation from a representative of CHX Products Ltd. Goods returned to CHX Products Ltd without such authorisation will be returned carriage forward.
CHX Products Ltd may, without prejudice to its other rights and remedies, terminate the contact if either there shall be any breach by the purchaser of any term or condition hereunder or the financial responsibility of the purchaser shall, in the opinion of CHX Products Ltd, become impaired of unsatisfactory.
CHX Products Ltd does not guarantee the suitability of the goods for any specific purpose.
Where the purchaser has specified that the goods be of certain colour or size, such specifications shall be subject to reasonable commercial variation.
When goods are made or adapted by CHX Products Ltd in accordance with the purchaser’s specifications, the purchaser shall indemnify CHX Products Ltd against all costs, claims and expenses incurred by CHX Products Ltd in respect of the infringement by such goods of any copyrights, patents, registered designs, trademarks or other such rights belonging to third parties.
Tools made for the manufacture of the goods to be supplied shall remain the property of CHX Products Ltd even though the purchaser may be charged with a sum in respect of such tools.
CHX Products Ltd reserves the right to deliver in total up to 5% over or under the quantity of specially imprinted goods ordered, and will invoice the purchaser for the quantity actually despatched.
Where the goods comprise or include the purchaser’s own materials, CHX Products Ltd shall not be liable for any damage to such materials howsoever caused during the course of manufacturing, processing or finishing by CHX Products Ltd.
19) Both legal and equitable title in the goods shall remain with CHX Products Ltd until the goods have been paid for in full. Should the goods be sold before such payment is made, the purchaser shall hold the proceeds of the sale of goods in trust for CHX Products Ltd. Until title to the goods has passed to the purchaser, the purchaser shall: (a) hold the goods on a fiduciary basis as the bailee of CHX Products Ltd (b) store the goods separately from all other goods held by the purchaser so that they remain readily identifiable as the property of CHX Products Ltd; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the goods; (d) maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (e) notify CHX Products Ltd immediately if it becomes subject to any of the events listed in clause 22; and (f) give CHX Products Ltd such information relating to the goods as CHX Products Ltd may require from time to time, but the purchaser may resell or use the goods in the ordinary course of its business. If before title events listed to happen and notifies the purchaser accordingly, then, provided that the goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy CHX Products Ltd may have, CHX Products Ltd may at any time require the purchaser to deliver up the goods and, if the purchaser fails to do so promptly, enter any premises of the purchaser or of any third party where the goods are stored in order to recover them.
Risk in the goods shall pass to the purchaser on despatch. If the purchaser fails to take or accept delivery of the goods within three business days of CHX Products Ltd notifying the purchaser that the goods are ready, then, except where such failure or delay is caused by an event outside the control of CHX Products Ltd or the purchaser’s failure to comply with its obligations under the contract: (g) delivery of the goods shall be deemed to have been completed at 9.00 am on the third business day after the day on which CHX Products Ltd notified the purchaser that the goods were ready; and (h) CHX Products Ltd shall store the goods until delivery takes place, and charge the purchaser for all related costs and expenses (including insurance).
If purchaser fails to make payments when due CHX Products Ltd may at their discretion charge interest on the outstanding balance of all overdue accounts at a rate of 4% above HSBC Bank PLC base rate. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment to the goods passes to the purchaser, the purchaser becomes subject to any of the in clause 22, or CHX Products Ltd reasonably believes that any such event is about.
If the purchaser becomes subject to any of the events listed in this clause, or CHX Products Ltd reasonably believes that the purchaser is about to become subject to any of them and notifies the purchaser accordingly, then, without limiting any other right or remedy available to CHX Products Ltd, CHX Products Ltd may cancel or suspend all further deliveries under the contract or under any other contract between the purchaser and CHX Products Ltd without incurring any liability to the purchaser, and all outstanding sums in respect of goods delivered to the purchaser shall become immediately due. For the purposes of this clause, the relevant events are: (a) the purchaser suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; (b) the purchaser commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the purchaser is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the purchaser with one or more other companies or the solvent reconstruction of the purchaser. (c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the purchaser, other than for the sole purpose of a scheme for a solvent amalgamation of the purchaser with one or more other companies or the solvent reconstruction of the purchaser (d) (being an individual) the purchaser is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the purchaser attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the purchaser; (g) (being a company) a floating charge holder over the purchaser’s assets has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the purchaser’s assets or a receiver is appointed over the purchaser’s assets; (i) any event occurs, or proceeding is taken, with respect to the purchaser in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 22(a) to clause 22(h) (inclusive); (j) the purchaser suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; (k) the purchaser’s financial position deteriorates to such an extent that in the opinion of CHX Products Ltd, the purchaser’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy; and (l) (being an individual) the purchaser dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.Termination of the contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
CHX Products Ltd may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract but the purchaser may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract without the prior written consent of CHX Products Ltd.
Any notice or other communication given to a party under or in connection with the contract shall: (a) be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or fax; (b) be deemed to have been received: if delivered personally, when left at the address; if sent by pre-paid first class post or recorded delivery, at 10.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one business day after transmission.The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
The contract shall be governed by and continued in accordance with English law and the purchaser (even if resident outside the jurisdiction) shall submit to the jurisdiction of the High Court of Justice in England.
CHX Products Ltd may at any time or times set off any liability of the purchaser to CHX Products Ltd against any liability of CHX Products Ltd to the purchaser, whether any such liability is present or future (whensoever arising), liquidated or unliquidated, under this agreement or not and irrespective of the currency of denomination. If the liabilities to be set off are expressed in different currencies, CHX Products Ltd may convert either liability at a market rate of exchange for the purpose of set off. Any exercise by CHX Products Ltd of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this agreement or otherwise.