To View a pdf of the Group Purchasing Terms & Conditions file please click HERE
To View a pdf version of the Terms & Conditions file please click HERE
Terms and Conditions of Sale
(a) In these Conditions:
"Business Day" means a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales;
"Company" means Mallatite Limited, a company registered in England and Wales with company number 02621328;
"Conditions" means these terms and conditions and any document referred to in these terms and conditions as amended by the Company from time to time;
"Confidential Information" means the provisions of the Contract, including the Specification and the Price, and all information which is secret or otherwise not publicly available (in both cases either in its entirety or in part) including commercial, financial, marketing or technical information, know-how, trade secrets or business methods, in all cases whether disclosed orally or in writing before, on or after the date of the Contract;
"Contract" means any contract between the Company and the Customer for the sale of Goods and/or provision of Services, incorporating these Conditions and formed in accordance with Condition 2(c);
"Customer" means the person, firm, company or party who purchases the Goods and/or Services from the Company;
"Customer Property" means all property supplied to the Company by or on behalf of the Customer which is held by the Company for the purposes of the Contract, or is in transit to or from the Customer;
"Data Protection Laws" means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including the Data Protection Act 2018 and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016 (the "GDPR");
"Data Subject Request" means an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the Data Protection Laws;
"Goods" means the goods, articles and materials (including any part or parts of them) set out in the Order;
"HS Policies" means the Company’s Code of Business Conduct and Anti-Bribery and Corruption Policy, available at www.hsgroup.com as amended by the Company from time to time;
"Intellectual Property Right" means any patent, copyright, trade mark, service mark or trade name, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in any part of the world in each case whether registered or not and including any application for registration of the foregoing;
"Order" means the Customer's order for the supply of Goods and/or Services as may be set out in the Customer's purchase order form, or the Customer's written acceptance of the Company's quotation, or in such form as the Company may determine from time to time;
"Price" means the price of the Goods and/or Services as defined in Condition 3(a);
"Representatives" means a party’s officers, directors, employees, personnel, contractors, consultants, agents and representatives;
"Services" means the services supplied by the Company to the Customer as set out in the Order;
"Specification" means the specification of the Goods and/or Services provided by the Company which is included or expressly referred to in the Contract;
"Warranty Period" means 12 months from the delivery or deemed delivery or release of the Goods or performance or deemed performance of the Services;
(b) headings are inserted for convenience only and shall not affect the interpretation or construction of these Conditions;
(c) words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(d) a reference to a party includes its successors or permitted assigns;
(e) a reference to any legislation or legislative provision will include any subordinate legislation made under it and will be construed as references to such legislation, legislative provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
(f) any phrase introduced by the terms "other", "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the generality of the words preceding or following those terms, and shall be deemed to be followed by the words "without limitation"; and
(g) references to "in writing" or "written" include e-mail but not other methods of electronic messaging.
2 BASIS OF CONTRACT
(a) These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (including under any Order) or which are implied by trade, custom, practice or course of dealing.
(b) The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions, which the Company may accept or reject in its absolute discretion. The Customer shall ensure that the terms of the Order are complete and accurate.
(c) The Order shall be deemed to be accepted by the Company when the Company issues a written acceptance of the Order or, (if earlier), the Company commences provision of the Services, manufacture of the Goods, their appropriation to the Customer's Order or dispatch of the Goods to the Customer. Any Order shall be accepted entirely at the discretion of the Company, at which point and on which date the Contract shall come into existence.
(d) Subject to Condition 2(f), the Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company, which is not set out in the Contract.
(e) A quotation for the Goods and/or Services given by the Company shall not constitute an offer. Unless otherwise agreed in writing or withdrawn earlier by the Company in writing, a quotation shall only be valid for a period of 30 days from its date of issue unless an alternative validity period has been expressed in writing by the Company.
(f) In case of conflict between these Conditions and the provisions of any supplemental trading terms agreed between the parties, these Conditions shall prevail.
(g) Any samples, drawings, descriptive matter or advertising issued by or on behalf of the Company and any descriptions of the Goods or illustrations or descriptions of the Services contained in its catalogues, brochures or other marketing material are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of these Conditions or have any contractual force. The Company will notify the Customer in writing of any material alterations to any specifications relating to the Goods and/or Services and the Customer shall be deemed to have accepted such alterations unless notice in writing to the contrary shall be received by the Company within 14 days of the Company's notice to the Customer.
3 PRICE AND PAYMENT
(a) The Price shall be the price set out in the Company's quotation or estimate or, if no price is quoted, the price set out in the Company's price list published on the date of delivery, or deemed date of delivery, of the Goods or date or performance, or deemed date of performance, of the Services, as applicable.
(b) The Price is exclusive of value added tax or other similar taxes or levies, import and export duties and/or taxes, any other tax or duty, and all costs or charges in relation to packaging, labelling, loading, unloading, delivery, carriage, freight and insurance, all of which amounts the Customer will pay, where applicable, in addition when it is due to pay the Price.
(c) The Company reserves the right to increase the Price by giving notice to the Customer, to reflect any increase in the cost of supplying the Goods and/or Services to the Company that is due to:
(i) any factor beyond the Company's control (including foreign exchange fluctuations, tax or duty increases, increase in supplier costs, increase in labour, materials or other manufacturing costs, or changes in any relevant laws);
(ii) any change in the Customer’s requirements, including any request by the Customer to change the delivery date(s), quantity or type or design of Goods and/or Services ordered; and/or
(iii) any delay caused by the Customer, including the Customer's delay or failure to give the Company adequate or accurate information or instructions in respect of the Goods and/or Services.
(d) If performance of the Contract is suspended with the written agreement of the Company then the Customer shall pay the pro rata Price for Services already carried out, Goods supplied or ordered and any other additional costs incurred by the Company, including storage and insurance.
(e) In respect of Goods, the Company shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Customer on or at any time after the performance of the Services for or on behalf of the Customer.
(f) The Customer shall pay all invoices in full and cleared funds without any set-off, counterclaim, deduction, or withholding, within 30 days of the date of the invoice. Time for payment shall be of the essence.
(g) The Company may at any time at its sole discretion require that payment is to be made by letter of credit. Where the Company specifies that payment is to be made by letter of credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional letter of credit in a form satisfactory to the Company and issued and/or confirmed by a bank in England which is acceptable to the Company. No delivery of the Goods or performance of the Services will take place until such a letter of credit has been issued and where appropriate confirmed and the Company is satisfied with all related arrangements. If for any reason payment is due under any letter of credit established for that purpose but not made, the Customer shall nevertheless remain liable to pay the Price, together with all other amounts due under the Contract.
(h) No indulgence granted by the Company to the Customer concerning the Customer's obligations under this Condition 3 shall be or be deemed to be a credit facility, but if any such facility is granted to the Customer by the Company, the Company may withdraw it at its sole discretion at any time.
(i) If any sum due from the Customer to the Company under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Company shall become due and payable immediately and, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
(i) cancel or suspend its performance of the Contract or any Order including suspending deliveries of the Goods and suspending delivery of any other goods to the Customer and suspending provision of the Services or other services until arrangements as to payment or credit have been established which are satisfactory to the Company;
(ii) require the Customer to pay for Goods prior to their despatch or collection from the Company's place of business;
(iii) suspend performance of Services remaining to be carried out; and/or
(iv) charge the Customer:
1. Interest on the overdue amount from the due date until payment is made in full both before and after any judgment, at the prevailingrate set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 (accruing on a daily basis and compounded monthly); and
2. the cost of obtaining judgment, all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
(j) Where the Company suspends delivery of the Goods and/or performance of the Services pursuant to Conditions 3(i)(i) and (iii), any agreed time schedules shall be extended by a period equal to the period of such suspension without prejudice to any other remedy available to the Company.
(k) Unless otherwise agreed in writing, payment shall be made by the Customer in pounds sterling. No payment shall be deemed to have been received until the Company has received in full in cleared funds.
4 DELIVERY AND ACCEPTANCE
(a) Delivery of the Goods shall, where the Contract designates a delivery point in the UK, be to such delivery point, and otherwise be Free Carrier (FCA), Mallatite Limited, Westhaven House, Arleston Way, Shirley, Solihull, West Midlands B90 4LH (Incoterms 2020) unless otherwise agreed in writing by the parties. The provisions of Incoterms 2020 shall apply to the Contract, but if there is any conflict between the provisions of Incoterms 2020 and these Conditions, then these Conditions shall prevail.
(b) If the Customer fails to take delivery of the Goods, then:
(i) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Company attempted delivery under Condition 4(a), as applicable; and
(ii) the Company may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
(c) If the Customer fails to collect or accept delivery of the Goods or any part thereof within 28 days of written notification from the Company that the Goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its other remedies under the Contract for such breach) to sell, or at its option destroy, such Goods and to apply the proceeds of their sale and/or their scrap value if destroyed towards payment of all sums due to the Company under the Contract.
(d) Any times specified by the Company for delivery of the Goods or performance of the Services are intended to be an estimate only and time for delivery shall not be of the essence.
(e) If the Company fails to dispatch or deliver the Goods or perform the Services by any specified times, such failure shall not constitute a breach of the Contract and the Company's liability for such failure shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods or services of similar description and quality in the cheapest market available, less the Price.
(f) The Company shall have no liability for any failure to deliver the Goods or Services to the extent that such failure is caused due to circumstances beyond its reasonable control, the Customer's failure to provide the Company with adequate delivery or site or other instructions for the Goods or Services or any relevant instruction related to the supply of the Goods or Services.
(g) Goods, once delivered, cannot be returned unless their return is agreed in advance in writing by the Company.
(h) Unless otherwise agreed in writing, the Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Customer shall make those licences and consents available to the Company prior to the relevant shipment.
(i) The Company shall be entitled at its discretion to make delivery of Goods or supply Services by instalments and to invoice the Customer for each instalment individually. Where Goods are delivered or Services are supplied by instalments each such instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
(j) The Company shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
(k) The Customer agrees to comply fully, at its own expense, with all applicable import and export laws, restrictions, national security controls and regulations of the United Kingdom and any other applicable local law or regulation.
5 TITLE AND RISK
(a) The Goods shall be at the risk of the Customer from the time of delivery or deemed delivery of the Goods in accordance with Conditions 4(a) or 4(b) or release of the Goods to the Customer, whichever is the earlier. Any materials required to perform the Services shall be at the risk of the Customer from the time such materials are delivered, or deemed to be delivered, to the premises at which the Services are to be performed.
(b) If for any reason the Customer does not accept delivery of any of the Goods or materials for the Services when they are ready for delivery, or the Company is unable to deliver the Goods or materials for the Services on time because the Customer has not provided appropriate access, instructions, documents, licences or authorisations:
(i) the Goods or materials for the Services will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by the Company's negligence); and
(ii) the Company may store the Goods or materials for the Services until actual delivery and the Customer shall be liable for all related costs and expenses (including storage and insurance).
(c) Full legal, beneficial and equitable