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Terms and Conditions

Terms and Conditions

Fieldens (WTA) Ltd

ACCEPTANCE AND AGREEMENT OF ORDER AND CONDITIONS OF TRADING

 

1. INTERPRETATION

1.1 In these conditions:

“Conditions” means these standard terms and conditions of sale and (unless the context otherwise requires) includes any special terms and conditions agreed between the Customer and the Seller

“Contract” means the Contract for the purchase and sale of the Goods and/or the carrying out of Services

“Customer” means the person who accepts a quotation of the Seller for the sale of the Goods or the supply of Services or whose order for the Goods or the supply of Services is accepted by the Seller

“Goods” means any goods machinery plant and equipment (including any instalment of such goods or any parts of them) supplied by the Seller

“Seller” means Fieldens (WTA) Ltd

“Services” means any Services which the Seller contracts to carry out for the Customer

“Writing” includes fax and comparable means of communication

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision amended re-enacted or extended at the relevant time

1.3 The headings in these Conditions are for Convenience only and shall not affect their interpretation

2. BASIS OF THE SALE

2.1 These Conditions apply to all Goods or Services supplied by the Seller

2.2 The Seller shall sell and the Customer shall purchase the Goods, or the Seller shall supply the Services which the Customer shall accept, in accordance with any quotation of the Seller which is accepted by the Customer or any order of the Customer which is accepted by the Seller subject in either case to these Conditions which shall govern the Contract

2.3 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance of offer invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.4 All Goods are offered subject to availability

3. ORDERS AND SPECIFICATION

3.1 The Customer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any application specification) submitted by the Customer and for giving the Seller any necessary information relating to the Goods or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms

3.2 The quantity quality and description of any specification for the Goods or Services shall be those in the Seller’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Seller)

3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with the specification submitted by the Customer the Customer shall indemnify the Seller against all loss damages costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Customer’s specification

3.4 The seller reserves the right to make any changes in the specification of the Goods or Services provided that such alteration shall not materially affect their quality or performance

3.5 Subject to clause 4.2.1 no order which has been accepted by the Seller may be cancelled by the Customer except with the agreement of the Seller and on terms that the Customer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges storage fees and expenses incurred by the Seller as a result of cancellation

4. PRICE OF THE GOODS

4.1 The price of the Goods or the Services shall be the Seller’s quoted price. All prices quoted are valid for

4.1.1 seven days only or

4.1.2 until earlier acceptance by the Customer or

4.1.3 notification (before acceptance by the Customer) by the Seller to the Customer of a change in the price

after any of which the offer to sell the Goods or provide the Services at the quoted price shall automatically be withdrawn

4.2 The Seller reserves the right by giving notice to the Customer at any time before delivery to increase the price of the Goods or Services to reflect

4.2.1 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 increase in the price of the Goods to the Seller any foreign exchange fluctuation currency regulation alteration of duties significant increase in the costs of labour materials or other costs of manufacture) in which case the Customer may cancel the Contract by giving the Seller written notice within 48 hours (time being of the essence) of the Seller notifying the Customer of the increase

4.2.2 any change in delivery dates quantities or specifications for the Goods or Services which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Seller adequate information or instructions

4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed between the Customer and the Seller all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods other than at the Seller’s premises the Customer shall be liable to pay the Seller’s charges for transport packaging and insurance

4.4 The price is exclusive of any applicable value added tax which the Customer shall be additionally liable to pay to the Seller

5. TERMS OF PAYMENT

5.1 The Seller shall be entitled to invoice the Customer for the price of the Goods or any instalment of Goods on or at any time after delivery of the Goods or that instalment of Goods are at any time after the Seller has notified the Customer that the Goods or the instalment of Goods are ready for collection or delivery and shall be entitled to invoice for the price of Services on completion of the work

5.2 The Customer shall pay the price of the Goods and Services within 24 hours of receipt of invoice even though delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract.

The Seller shall be entitled to retain possession of Goods until it has been paid in full and any cheque has been cleared

5.3 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller and without liability to the Customer the Seller shall be entitled to:

5.3.1 cancel the Contract or suspend any further deliveries to the Customer

5.3.2 cancel any other Contract between the Seller and the Customer and to suspend any deliveries to the Customer under such Contracts

5.3.3 appropriate any payment made by the Customer to such of the Goods or Services (or the Goods or Services supplied under any other Contract between the Customer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Customer)

and

5.3.4 charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of four per cent per year above the current bank base rate from time to time in force from the date of invoice to the date when payment in full is made

5.3.5 if the Customer fails to pay on the due date the Customer shall be responsible for all legal and other costs (including commission) incurred by the Seller in recovering or attempting to recover any sums due to the Seller and in enforcing any other rights of the Seller arising under these Conditions

5.4 The Seller shall have a lien over the Customer’s Goods for all sums due at any time from the Customer in connection with any Contract between the Customer and the Seller

6. DELIVERY

6.1 Delivery of the Goods shall be made by the Customer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Customer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller by the Seller delivering the Goods to that place

6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Customer

6.3 Where the Goods are to be delivered in instalments each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated

6.4 If the Seller fails to deliver the Goods or provide the Services for any reason other than any cause beyond the Seller’s reasonable control or the Customer’s fault and the Seller is accordingly liable to the Customer the Seller’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods or services to replace those not delivered or provided over the price of the Goods or the Services

6.5 If the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (other than by reason of any cause beyond the Customer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller the seller may:

6.5.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage and for the costs of any additional attempt to deliver the Goods or

6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract

6.6 No Goods may be returned in any circumstances without the prior written consent of the Seller

7. RISK AND PROPERTY

7.1 Risk of damage to or loss of Goods shall pass to the Customer:

7.1.1 in the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Customer that the Goods are available for collection or

7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises at the time of delivery or if the Customer wrongfully fails to take delivery of the Goods the time when the Seller has tended 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 Customer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold or Services agreed to be performed by the Seller to the Customer under any Contract for which payment is then due

7.3 Until such time as the property in the Goods passes to the Customer the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored protected and insured and identified as the Seller’s property. Until the Customer has ceased to have the right to retain possession of the Goods or it has acquired the property in them the Seller licences the Customer to sell Goods on its behalf as its agent (except that the Customer shall not hold itself out as the Seller’s agent but shall sell on the Customer’s own account) and the Customer shall hold the proceeds of sale (together with the proceeds of any insurance on Goods the property in which has not passed to the Customer) on trust for the Seller

7.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Customer to deliver up the Goods to the Seller and if the Customer fails to do so at once to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods and the Customer shall indemnify the Seller against any claim by a third party in respect of such entry

7.5 The Customer 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 Seller but if the Customer does so all moneys owing by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) at once become due and payable

8. WARRANTIES AND LIABILITY

8.1 Subject to the Conditions set out below the Seller warrants that Goods manufactured by the Seller will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from the date of their initial use or twelve months from delivery whichever is the first to expire

8.2 The above warranty is given by the Seller subject to the following conditions:

8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing design instructions or specification supplied by the Customer

8.2.2 the Seller 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 Seller’s instructions (whether oral or in writing) misuse or alteration or repair of the Goods without the Seller’s approval

8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods 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 Seller in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller

8.3 In the case of other Goods sold by the Seller it will assign the warranty or guarantee (if any) received from the supplier of the Goods manufacturers

8.4 Except 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 except where the Goods are sold or Services provided under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) where the statutory rights of the Consumer are not affected by these Conditions

8.5 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification or the quality of Services provided by the Seller shall (whether or not delivery is refused by the Customer) be notified in Writing to the Seller within seven 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. If delivery is not refused and the Customer does not notify in Writing the Seller accordingly the Customer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods have been delivered in accordance with the Contract

8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Seller’s sole discretion refund to the Customer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Customer

8.7 Where any valid claim in respect of the quality of any Services is notified to the Seller in accordance with these Conditions the Seller shall be allowed a reasonable time in which to rectify any defect

8.8 Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Customer because of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of Services or Goods or the use of Goods or their resale by the Customer except as expressly provided in these Conditions

8.9 The Seller shall not be liable to the Customer or be deemed to be in breach of the Contract because of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods or Services if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable control:

8.9.1 Act of God explosion flood adverse weather conditions fire or accident

8.9.2 war or threat of war sabotage insurrection civil disturbance or requisition

8.9.3 acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority

8.9.4 import or export regulations or embargoes

8.9.5 strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party)

8.9.6 difficulties in obtaining the Goods raw materials labour fuel parts or machinery

8.9.7 power failure or breakdown in machinery

8.10 The Seller gives no warranty that the Goods or Services comply with the Health and Safety at Work Act 1974 or any subordinate or replacement legislation

8.11 All particulars of second hand goods are believed to be correct but the Customer must inspect the Goods prior to purchase as no liability is accepted as to description specification quality or fitness for purpose of second hand goods

9. INDEMNITY

9.1 If any claim is made against the Customer that the Goods and/or Services 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 the Seller shall indemnify the Customer against all loss damages costs and expenses awarded against or incurred by the Customer in connection with the claim or paid or agreed to be paid by the Customer in settlement of the claim provided that:

9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim

9.1.2 the Customer shall give the Seller all reasonable assistance for the purpose of any such proceedings or negotiations

9.1.3 except pursuant to a final award the Customer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld)

9.1.4 the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy of cover (which the Customer shall use its best endeavours to do)

9.1.5 the Seller shall be entitled to the benefit of and the Customer shall accordingly account to the Seller for all damages and costs (if any) awarded in favour of the Customer which are payable by or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim and

9.1.6 without prejudice to any duty of the Customer at common law the Seller shall be entitled to require the Customer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss damages costs or expenses for which the Seller is liable to indemnify the Customer under this clause

10. INSOLVENCY OF CUSTOMER

10.1 This clause applies if:

10.1.1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction) or

10.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer or

10.1.3 the Customer ceases or threatens to cease to carry on business or

10.1.4 the Seller reasonably thinks that any of the events mentioned above is about to occur in relation to the Customer and so notifies the Customer

10.2 If this clause applies then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable not withstanding any previous agreement or arrangement to the contrary

11. EXPORT TERMS

11.1 Where Goods are supplied for export from the United Kingdom the provisions of this clause 11 shall (subject to any special terms agreed between the Customer and the Seller) apply notwithstanding any other provision of these Conditions

11.2 The Customer 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 the Goods

11.3 The Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979

11.4 The Customer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is discovered after shipment or in respect of any damage during transit

11.5 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Customer in favour of the Seller and confirmed by a bank in London acceptable to the Seller or if the Seller has agreed on or before acceptance of the Customer’s order to waive this requirement by telegraphic transfer received by the Seller prior to shipment

12. GENERAL

12.1 The Seller may sub-contract the whole or any part of the work agreed to be done

12.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice

12.3 No waiver by the Seller of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision

12.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable whole or in part of the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby

12.5 The Contract shall be governed by the laws of England and the Seller and the Customer submit to the jurisdiction of the English Courts

12.6 Statements may not be sent unless specifically requested

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