TERMS AND CONDITIONS OF SALE – UK
- THESE TERMS AND CONDITIONS APPLY TO ALL SALES OF GOODS ORDER PROCESS AND WHEN CONTRACTS FOR THE PURCHASE OF GOODS ARE EFFECTIVE.
These terms and conditions apply to all quotations and to each agreement between HDT EXPEDITIONARY SYSTEMS, INC. (“Seller”) and the purchaser of goods and/or services from Seller (“Buyer”) for the sale and purchase of goods to the exclusion of all other terms, conditions, documents and other provisions. Without limitation, no other terms, conditions or other documents that the Buyer seeks to impose or incorporate or which apply in the course of dealing or otherwise shall apply to any quotation or be incorporated in any agreement between Buyer and Seller.
These terms and conditions, the applicable quotation and order constitute the entire agreement between Seller and Buyer in connection with all goods supplied or to be supplied by Seller and supersede any previous agreement, warranty, statement, representation, understanding or undertaking.
Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made by or given on behalf of the Seller which is not set out in these terms and conditions or agreed to by an authorised officer of Seller in writing.
Any quotation issued by Seller is for information purposes only and does not constitute an offer by Seller to supply any goods. All quotations expire forty-five (45) days after the date of issue, unless otherwise stated on the face of the quote, and may only be reinstated by written confirmation by Seller.
Typographical and clerical errors in quotations and all other documents issued by Seller are subject to correction.
Each order shall be deemed to be a separate order by the Buyer to purchase goods under these terms and conditions and Seller shall be free to accept or decline orders in its absolute discretion. Buyer is responsible for ensuring that the terms of the order are complete and accurate.
Seller will usually acknowledge receipt of orders by email. However, any such acknowledgment will not amount to acceptance of any order.
The contract between Buyer and Seller for the supply of any goods will only come into effect once Seller has accepted Buyer’s order for those goods in accordance with these terms and conditions. An order will be treated as having been accepted by Seller only when Seller issues a written acceptance of that order to the Buyer via Seller’s SAP system or by such other means as the Seller notifies to Buyer at any time. No order shall be deemed to be accepted and no contract entered into between Buyer and Seller until such written acceptance has been issued by Seller.
References in these terms and conditions to the, this, any, an, etc. “Agreement” are to each individual order for goods as accepted by Seller in accordance with these terms and conditions and include these terms and conditions and the applicable quotation. Each such Agreement is a separate agreement between the parties for the supply and purchase of the goods to which the Agreement relates.
- PRICES. Prices are in U.S. currency, as specified in the quotation, or where there is no quotation which is valid at the time of Buyer placing an order at the Seller’s standard price list and are ex-works Seller’s unless otherwise indicated in Seller’s acceptance of any such order. All prices are subject to change without notice at any time prior to Seller’s acceptance of Buyer’s order in accordance with these terms and conditions.
- do not include the cost of freight, shipping or insurance; and
- do not include the cost of any applicable VAT, sales, use, transfer, excise or other tax tariffs or customs duties
all of which are the responsibility of Buyer.
Where requested by Buyer and agreed by Seller’s authorized purchasing representative in writing (to include email), Seller may provide assistance to Buyer in relation to delivery of goods. In such case Buyer will pay to Seller directly to or such third party as Seller requests such costs of shipping, freight, insurance, VAT, sales, use, excise or other taxes, tariffs or customs duties in relation to such delivery, as Seller requests in accordance with section 3 below.
Seller may, by giving notice to Buyer any time before delivery of the goods to the applicable carrier, increase the price of the goods to reflect any increase in the cost of the goods that is due or attributable to any factor beyond Seller’s control including, without limitation, increases in labour, materials and other manufacturing costs, delays caused by any instructions or failure to give instructions or information by the Buyer, governmental action, foreign exchange fluctuations, increases in taxes and duties and levies and any changes in law or regulation.
Prices are also subject to change in accordance with section 14 below.
- PAYMENT. Terms of payment are:
- unless otherwise specified by Seller in Seller’s acceptance of any such order, the earlier of: thirty (30) days from the date of issue of by Seller an invoice for the goods or thirty (30) days from delivery of the goods ex-works; or
- where Seller accepts an order from Buyer for the first time, unless otherwise indicated by Seller in writing, Buyer shall pay half of the total amount of the total price of goods on acceptance of the order by the Seller and the remainder before delivery of the goods ex-works and in in any event prior to such delivery. If Buyer requests, Seller shall provide to Buyer a pro-forma invoice for each such payment. Otherwise, Seller shall provide to Buyer an invoice marked “Paid” after delivery of the goods occurs.
All payments shall be made in U.S. currency. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made within ten (10) days after receipt of the applicable shipment by Buyer. Payments not received when due will be overdue. Buyer shall pay interest on the amount of any payment which is overdue at the rate of 4% per annum above the base rate of Barclays Bank Plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, before as well as after judgment. Buyer shall pay the interest together with the overdue amount. Buyer further agrees to reimburse Seller for all costs of collection of any overdue amount, including, without limitation, legal fees and court costs.
If, in the opinion of Seller, the financial condition of Buyer at any time for any order herunder does not justify shipment on the terms of payment set out above, Seller may require full or partial payment in advance or may ship C.O.D. In the event of the bankruptcy or insolvency of Buyer, Seller shall be entitled to cancel and terminate any Agreement then outstanding and shall be entitled to reimbursement for all costs and expenses therefor incurred, plus incidental and consequential damages. For the purposes of this agreement “insolvency” or “insolvency event” includes, without limitation, any inability of Buyer to pay its debts as they fall due at any time and the appointment of an insolvency practitioner of any type in respect of Buyer and any similar event in any jurisdiction.
- SHIPMENT AND RISK AND TITLE TO GOODS. The goods shall be shipped ex-works, as specified in the applicable quotation.
Risk in the goods shall pass to Buyer on completion of delivery, title to the goods shall not pass to Buyer until the earlier of: (1) the Seller receiving full payment for the goods; and (2) when Buyer resells the goods, in which case title to the goods shall pass to the Buyer at the time specified below.
Until title to the goods has passed to Buyer, Buyer shall: (1) store the goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (2) not remove, deface or obscure any identifying mark or packaging on or relating to the goods; (3) maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (4) notify the Seller immediately if it becomes subject to any insolvency events; and (5) give the Seller such information relating to the goods as the Seller may require from time to time.
Subject to any insolvency events, the Buyer may resell or use the goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the goods. However, if the Buyer resells the goods before that time: (1) it does so as principal and not as the Seller’s agent; and (2) title to the goods shall pass from the Seller to the Buyer immediately before the time at which resale by the customer occurs.
If before title to the goods passes to the Buyer the Buyer becomes subject to any insolvency events then, without limiting any other right or remedy: (1) the Seller may have the Buyer’s right to resell the goods or use them in the ordinary course of its business cease immediately; and (2) the Seller may at any time require the Buyer to deliver up all goods in its possession which have not been resold, or irrevocably incorporated into another product, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the goods are stored in order to recover them.
- DELIVERY. Shipping and delivery dates are approximate only. Seller shall deliver ex-works, as specified in the quotation . Without limitation, Seller is not responsible for and shall not be held liable in respect of delays or non-performance resulting from (a) delays in receipt of final specifications, instructions or other required information from Buyer; (b) changes in specifications; or (c) circumstances beyond Seller’s control, including, without limitation, strikes, labour disturbances, material shortages, nonperformance by subcontractors or suppliers, or other abnormal manufacturing conditions, delays or failures of carriers or communications, fire, flood, storms, accident, riot, war and invasion, governmental requisitions or priorities, acts of God, or other causes beyond Seller’s control.
The limitations of liability and other provisions in clauses 7 and 8 below will apply in the event of any failure by the Seller to deliver goods in accordance with the Agreement.
If Buyer fails to make its carrier available to collect the goods within ten (10) business days after the day on which Seller has notified [Buyer that the goods were ready for delivery, Seller may resell or otherwise dispose of part or all of the goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the goods or charge the Buyer for any shortfall below the price of the goods which Buyer shall pay within five (5) business days of the date of an invoice issued by Seller for the same.
Risk of loss during shipment shall be borne by Buyer. Buyer shall be responsible for obtaining and maintaining appropriate insurance protection in respect of the goods.
- CANCELLATION. Orders are not subject to cancellation or modification by Buyer, in whole or in part, after Seller’s acceptance, except with Seller’s express written consent. Seller may require, as a condition to such consent, payment by Buyer to Seller of an amount specified by Seller to compensate Seller for: (a) the price of all goods that have been delivered and not previously paid for; plus (b) the actual cost incurred by Seller that is properly allocable to the goods not delivered at the time of decrease or cancellation, including, without limitation, the costs of materials or other items purchased for use in producing such goods and 10% of said costs as partial liquidated damages; plus (c) the profit, including reasonable overhead, that Seller would have realised from full performance by Buyer; plus (d) the costs of molds, tools, dies or other items produced by or for Buyer; plus (e) the reasonable costs (including legal costs and expenses) incurred by Seller in reaching a settlement and effecting collection hereunder provided that items listed as special preparations are not subject to cancellation except by payment of the full sales price. Buyer may require delivery of any goods for which payment is made in accordance with these terms and conditions. Any other items, however, shall remain the property of Seller, with the cancellation charge being deemed a service charge.
- LIMITED WARRANTY/DISCLAIMER. Seller warrants that the goods shall, in accordance with applicable law, be free from defects in materials and workmanship for the periods noted below (“Warranty Period”).
Military Shelters – 36 Months
Trailer Systems – 18 Months
Environmental Control Systems – 18 Months
Heaters – 18 Months
Power Generation Systems – 18 Months
Chem/Bio Systems – 18 Months
Filters – Not to exceed Test/Inspection Date on manufacturing package or until opened for use
All other products not included in Warranty Schedule – 12 Months
Seller shall not be liable under the above warranty in respect of any defect which arises by reason of any of the following: Buyer, its agents and/or employees failing to comply with any written directions, safety notices, warnings and other instructions furnished by Seller; Buyer failing to use reasonable care in the installation and/or use of the goods; if Buyer makes further use of the goods after discovery of any defect in materials and/or workmanship to the goods; if Buyer alters or repairs such goods without the written consent of Seller; and/or the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions.
Provided Buyer gives Seller notice in writing during the Warranty Period within a reasonable time, and in any event no later than ten (10) business days after discovery that some or all of the goods do not comply with the warranty set out above; the Seller is given a reasonable opportunity to examine the goods; and the Buyer returns such goods to the Seller’s place of business, where practicable as determined by the Seller in its sole discretion, the Seller shall, at its option, repair or replace the defective goods, or refund the price of the defective goods. Save as provided in section 8.1 below, the liability of Seller (whether for breach of contract, tort, misrepresentation, warranty, negligence, breach of statutory duty or otherwise) shall be limited to repairing or replacing the relevant goods or, at Seller’s option, refunding the price paid by Buyer for the goods.
Seller’s liability under this warranty is limited as set out in clause 8 below. Except as expressly set out in these terms and conditions, all warranties, terms and conditions are excluded from these terms and conditions and the Agreement. Without limitation Seller gives no warranties, terms or conditions relating to fitness for purpose, satisfactory quality and merchantability.
- LIMITATIONS AND EXCLUSION OF LIABILITY
8.1 Nothing in these terms and conditions shall limit or exclude Seller’s liability for:
- death or personal injury caused by its negligence; or
- fraud or fraudulent misrepresentation; or
- any matter in respect of which it would be unlawful for Seller to exclude or restrict liability.
8.2 Save as provided in section 8.1 above, Seller shall under no circumstances be liable to Buyer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty or otherwise, for any actual or anticipated loss of profit, revenue or business or any indirect, special or consequential loss or damage arising under or in connection with the terms and conditions and the Agreement.
Any delay in delivery of any goods will not entitle Buyer to: refuse to take delivery of those goods; claim damages; or terminate the Agreement.
Save as provided in section 8.1 above, in no event shall Seller’s total liability arising in connection with or under these terms and conditions or the Agreement (whether for breach of contract, tort, misrepresentation, warranty, negligence, breach of statutory duty or otherwise) exceed two (2) times the purchase price of the goods giving rise to any such claim or liability.
All of the provisions of this section 8 will apply to all other sections and provisions of these terms and conditions and all Agreements whether or not those sections and provisions are expressly made subject to the provisions of this clause 8.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms and conditions and the Agreement or theirs subject matter or formation (including non-contractual disputes or claims).
Seller reserves the right to recall any goods, where it determines in its sole discretion that the making, using or selling of such goods would result in the infringement of any patent right or other third party intellectual property right and Buyer shall return such goods to Seller and, at the Seller’s cost, give any assistance that the Seller shall reasonably require to recall, as a matter of urgency, such goods from third parties. On receipt of the recalled goods Seller shall, at its option, repair or replace the recalled goods, or refund the price of the recalled goods.
Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
Words and expressions defined in these terms and conditions shall have the same meaning wherever they appear and in any Agreement.
The term or expression “ex-works” where used in these terms and conditions and in any Agreement means ex-works Seller’s plant where “ex-works” has the meaning provided in the current version of INCOTERMS.