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P C HENDERSON LIMITED (registered number 01188468) whose registered office is at BOWBURN NORTH INDUSTRIAL ESTATE, DURHAM ROAD, BOWBURN, DURHAM, DH6 5NG (“we” or “us”)
In these terms and conditions:-
“P C Henderson” means, P C Henderson Ltd and Companies and any other connected organisation that supplies the goods ordered by you and any successor to its business;
“We and Us” means P C Henderson Ltd either alone or together with you, as the context requires;
“Working day” means every day of the year except weekends, and English statutory and public holidays;
“You” means the person ordering goods subject to these terms and conditions;
We may at any time make changes to this site and the details displayed on it (including prices).
We shall not be liable to you where performance of any of our obligations to you is prevented, frustrated or impeded by reason of acts of God, war and other hostilities, civil commotion, accident, strikes, lock outs, trade disputes, acts or restraints of Government, imposition or restrictions of imports or exports or any other cause not within the reasonable control of P C Henderson Ltd.
If any part of these terms and conditions is found to be unenforceable as a matter of law, all other parts of these terms and conditions shall not be affected and shall remain in force.
We cannot guarantee that the appearance and/or colours of products shown on this site exactly reproduce the appearance and/or colours of the physical products themselves. All sizes quoted are approximate.
To the extent permitted by law, P C Henderson accepts no liability for any loss, damage or injury arising as a consequence of the advice provided.
These terms and conditions and any contract between us shall be governed by and construed in accordance with English law and the English Courts shall have jurisdiction over any disputes between us.
The contents of the web site are copyright © 2016 P C Henderson Limited. All Rights Reserved.
P C Henderson Ltd or its licensors are the owners of the copyright (and database rights) in this site and all material on the site, including content, design, text, graphics, photographs, software compilations and underlying source codes.
Information on the web site, including but not limited to, text, images and sound, may not, except for strictly private purposes or where otherwise indicated, be reproduced, transferred, distributed or stored without prior written permission by PC Henderson Limited. Modifications to the contents of the web site are expressly prohibited.
You may download and print extracts from this site for the sole purpose of placing an order with P C Henderson Ltd or for your personal non-commercial use only. No right, title or interest in any downloaded materials or software is transferred to you by such downloading. You may not make any other use of material on this site (including reproduction except as above, publication, alteration, distribution, broadcast, or other commercial exploitation) without our written permission.
Some parts of the web site contain images that are subject to the copyright rights of their providers.
P C Henderson Ltd is the owner of the trade marks appearing on this site and all associated trade names, logos and devices unless indicated to the contrary. All other trade marks, logos and names appearing on this site are the property of their respective owners, as indicated.
No Warranties or Representations
INFORMATION ON THIS WEB SITE IS PROVIDED “AS IS”. IN NO EVENT WILL P C Henderson Limited BE LIABLE TO ANY PARTY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS WEB SITE, OR ON ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
P C Henderson Limited makes no warranties and/or representations whatsoever about any other web site which you may access through this one. Such are provided only as a convenience and does not mean that P C Henderson Limited endorses or accepts any responsibility for the contents or the use of such web site. In addition, it is up to you to take precautions and to ensure that whatever you select for your use is free of such items as viruses, worms, Trojan horses and other items of a destructive nature.
Information on this web site may contain technical inaccuracies or typographical errors. The information contained on this web sites may be changed at any time without prior notification or obligation.
Information that is published on the web site may contain references or cross references to P C Henderson Limited products, services etc. that are not announced or available in your country.
The accuracy of such information cannot be guaranteed, particularly since this information is subject to change, specific requirements or availability and such references do not imply that P C Henderson Limited intends to announce such products, services etc. in your country. Contact your local Henderson distributor for complete details regarding the products, services etc. which may be available to you and for ordering. Your local Henderson Installer/Distributor may be found using the “Find an Installer/Distributor” service on this website.
We constantly endeavour to keep this web site up to date; however some of the information published may not be correct due to product changes which may have occurred since it was last updated. Before ordering, please ask your Henderson Installer/Distributor for the latest information. P C Henderson Ltd reserves the right to make changes at any time, without notice, to prices, products and specifications.
Your attention is particularly drawn to the exclusions and limitations of liability at Condition 8.
1.DEFINITIONS AND INTERPRETATIONS
In these Conditions:
1.1 the following words and expressions have the following meanings and, in addition, any words and expressions defined in any Condition will have the same meaning when used in any other Condition:
a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales
shall have the meaning given to it in Condition 2.2
Force Majeure Event
(a) act of God
(b) war, insurrection, riot, civil commotion, act or threat of terrorism
(c) lightning, earthquake, fire, flood, storm, or extreme weather condition
(d) theft, malicious damage
(e) strike, lockout, industrial dispute (whether affecting the workforce of a party and/or any other person)
(f) breakdown or failure of plant or machinery
(g) inability to obtain essential supplies or materials
(h) change in law
(i) any failure or default of a supplier or sub-contractor of ours; orany event or circumstance to the extent it is beyond our reasonable control
shall have the meaning given to it in Condition 2.2 and includes both Standard Goods and Made to Measure Goods
liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence
Made to Measure Goods
Bespoke specification for a customer when required
your order for the supply of goods by us, set out via post, fax, email, phone or placed via our on-line ordering facility accessed via our website at www.pchenderson.com
our written acceptance of the Order set out in our standard order acknowledgement form or generated via our on-line ordering facility accessed via our website at www.pchenderson.com
the prices for the Goods set out in our quotation
the written technical specification for the Goods set out in brochures, datasheets and the company website
Goods excluding Made to Measure Goods
the person named as the customer in the Order
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;
1.6 the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general words introduced by the word “other” or a similar word or expression will not be restricted by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; and
1.7 any reference to:
1.71 time of day is to London time;
1.72 a day is to a period of 24 hours running from midnight to midnight.
2. CONTRACT INFORMATION
2.1 Any quotation given by us will be valid for a period of 30 days from and including its date, and will constitute an invitation to treat and not an offer.
2.2 The Order constitutes an offer by you to purchase the goods set out in the Order (“Goods”) from us on these Conditions. A contract for the supply of Goods by us to you on these Conditions will be formed when we accept the Order by issuing an Order Acknowledgement to you (the “Contract”). For the avoidance of doubt, we are under no obligation to accept the Order.
2.3 These Conditions are the only terms and conditions on which we will supply goods to you and will apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.4 Delivery will be deemed conclusive evidence of your acceptance of these Conditions.
2.5 We will be entitled, at our discretion, to deliver Goods by separate instalments. We will be entitled to invoice the Price for each instalment separately in accordance with Condition 5. Each instalment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an instalment will give you the right to cancel or terminate any other contract.
3. THE GOODS
3.1 We will be entitled at any time to:
3.1.1 vary the design, finish or Specification of Goods and/or their packaging; and/or
3. 1.2 substitute any materials or parts which are used in Goods and which are unavailable for any reason with alternative materials or parts to the extent that:
184.108.40.206 this does not materially affect their quality or performance; or
220.127.116.11 this is necessary to comply with any health and safety or other legal requirements.
We will use reasonable endeavours to give you prior notice of any such variation or substitution.
3.2 All samples, drawings, descriptive and illustrative matter and advertising issued or published by us (or the manufacturer of the Goods) whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximate idea of the relevant Good.
3.3 The Contract is not a sale by sample.
4.1 Subject to Condition 2 we will deliver the Goods to the address specified in the Order and you will be responsible for off-loading the Goods from the delivery vehicle. Delivery of the Goods (“Delivery”) will be deemed to occur when the Goods arrive at the delivery address.
4.2 Where the Goods are to be delivered outside of the United Kingdom this Condition 4.2 will apply. The Goods will be delivered (as per INCO Terms 2010). Delivery of the Goods will be deemed to occur when we complete our delivery obligations under that Incoterm. To the extent only of any conflict or inconsistency between as such term defined in Incoterms 2010 and these Conditions, Incoterms 2010 will take precedence.
4.3 We will use reasonable endeavours to deliver Goods on the estimated delivery date set out in the Order Acknowledgement, but time for delivery of the Goods will not be of the essence of the Contract. Any delivery dates given by us are estimates only.
4.4 If Delivery occurs but you fail to accept delivery of the Goods we will be entitled to:
4.4.1 store or arrange for storage of the Goods until you accept delivery of them or they are disposed of under Condition 4.2 (as applicable) and to take such action as we consider necessary to attempt to re-deliver the Goods to the address specified in the Order;
4.4.2 treat the Contract as repudiated by you and dispose of the Goods in any way we see fit, including by sale to another person. If we sell any of the Goods under this Condition 4.2 at a price which is less than the relevant Price plus any relevant packaging, insurance, carriage and delivery costs, we will be entitled to charge you for the shortfall; and
4.4.3 charge you for all costs and expenses which we incur under Conditions 4.1 and 4.4.2.
5. PASSING OF RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods will pass to you on Delivery.
5.2 Subject to Conditions 4 and 5.5 legal and beneficial ownership of the Standard Goods will not pass to you until we have received in full in cleared funds:
5.2.1 all sums due to us in respect of the Standard Goods; and
5.2.2 all other sums which are or which become due to us from you on any account whatsoever.
5.3 Subject to Conditions 4 and 5.5 legal and beneficial ownership of the Made to Measure Goods will pass to you upon Delivery.
5.4 You may resell the Goods in the ordinary course of your business and, if you do so, legal and beneficial ownership of Goods will pass to you immediately prior to you entering into a binding contract for the sale of those Goods.
5.5 We may, by giving written notice to you, pass legal and beneficial ownership of the Goods (or any of them) to you at any time before such ownership would otherwise have passed to you.
5.6 Until ownership of the Standard Goods has passed to you, you will:
5.6.1 hold the Standard Goods on a fiduciary basis as our bailee;
5.6.2 store the Standard Goods (at no cost to us) separately from all other goods in such a way that they remain readily identifiable as our property;
5.6.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Standard Goods;
5.6.4 not, without our prior written consent, annex any Standard Goods to your premises;
5.6.5 maintain the Standard Goods in satisfactory condition; and
5.6.6 whenever requested by us produce a copy of the policy of insurance in respect of the Standard Goods to us, do nothing and not omit to do anything which in consequence permits any insurer to refuse to indemnify you in full in accordance with the terms of any insurance policy maintained in respect of the Standard Goods in respect of any claim made under any such insurance policy and procure that any insurance proceeds received in respect of lost or damaged Standard Goods are paid to us, to the extent required to satisfy your indebtedness to us.
5.7 You may use the Goods in the ordinary course of your business before ownership has passed to you.
5.8 If you resell any Goods, you will hold such part of the proceeds of sale as represents the amount owed by you to us in trust for us and will account to us accordingly.
5.9 Your right to possession, use and resale of the Goods will terminate immediately if, before ownership of the Goods passes to you in accordance with Conditions 2, 5.4 or 5.5:
5.9.1 you have a receiver, administrator or provisional liquidator appointed; are subject to a notice of intention to appoint an administrator; pass a resolution for your winding-up (save for the purpose of a solvent restructuring); have a winding up order made by a court in respect of you; enter into any composition or arrangement with creditors (other than relating to a solvent restructuring); or cease to carry on business; or have any steps or actions taken in connection with any of these procedures;
5.9.2 we give you written notice that we have any reasonable concerns regarding your financial standing;
5.9.3 you fail to pay any sum due to us under the Contract or any other contract between us and you on or before the due date;
5.9.4 you encumber or in any way charge any of the Goods; or
5.9.5 the Contract expires or terminates for any reason.
5.10 We will be entitled to recover payment for the Goods (including by way of an action for the price) notwithstanding that ownership of any of the Goods has not passed from us.
5.11 You grant, and will procure that the owner of any relevant third party premises grants, us, our agents, employees and sub-contractors an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where your right to possession, use and resale has terminated, to recover them.
5.12 Where we are unable to determine whether any goods are the Goods in respect of which your right to possession, use and resale has terminated, we will be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
5.13 If your right to possession, use and resale of the Goods terminates in accordance with Condition 9, we will be entitled to issue you with a credit note for all or any part of the price of the Goods together with value added tax thereon.
5.14 Our rights contained in this Condition 5 will survive expiry or termination of the Contract however arising.
6. PRICE AND PAYMENT
6.1 You will pay the Prices to us in accordance with this Condition 6.
6.2 The Prices is exclusive of packaging, insurance, carriage and delivery costs which will be payable by you in addition to the Prices. Subject to agreement where the carriage charge is waived on a case by case agreement. Any such agreement will not form or imply an ongoing contract term.
6.3 Any sum payable under the Contract is exclusive of value added tax (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
6.4 We will be entitled to vary the Prices at any time by giving written notice to you to reflect any variation in the cost of supplying the Goods which arises as a consequence of any variation in your requirements for the Goods, any information provided by you being inaccurate or incomplete or any failure or delay by you in providing information.
6.5 We will be entitled to invoice you for the Prices for the Goods and any packaging, insurance, carriage and delivery costs payable by you in addition to the Prices following us issuing the Order Acknowledgement. P C Henderson will invoice for goods at point of ordering for online order and post-despatch for non-online orders when credit arrangements are agreed upfront and an account is provided within specified limits.
6.6 Account Holders: Each invoice will be payable by you within thirty 30 calendar days following the month on which the invoice is issued. All payments will be made in pounds sterling in cleared funds.
6.7 Notwithstanding any purported contrary appropriation by you, we will be entitled, by giving written notice to you, to appropriate any payment by you to any invoice issued by us.
6.8 If any sum payable under the Contract is not paid on or before the due date for payment we will be entitled to charge you interest on that sum at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 4% from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis.
6.9 If you fail to make any payment due to us under the Contract or any other contract between you and us on or before the due date we will be entitled to withhold further deliveries of Goods until payment of all overdue sums has been made.
6.10 If you fail to make any payment due to us under the Contract on or before the due date or if we have any reasonable concerns regarding your financial standing we will be entitled, by giving written notice to that effect to you, to issue invoices prior to Goods being delivered and we will not be required to deliver the Goods until the relevant invoice has been paid in full.
6.11 If you fail to make any payment due to us under the Contract on or before the due date or if any of the events or circumstances set out in Conditions 9.1or 5.9.2 occur all invoices issued will immediately become due and payable.
6.12 Save as otherwise expressly provided in these Conditions or required by law, all payments to be made by you to us under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
6.13 Following expiry or termination of the Contract:
6.13.1 we will be entitled to invoice all Prices and any packaging, insurance, carriage and delivery costs and Expenses incurred which have not yet been invoiced; and
6.13.2 all invoices (including any invoices issued under Condition 13.1) will become immediately due and payable by you.
7.1 We warrant to you that during the period starting on Delivery and ending on the earlier ofthe time at which the relevant Good is incorporated into another product or used in a manufacturing process or expiry of a period of [twelve (12)] months from and including the date of Delivery (the “Warranty Period”) the Goods will:
7.1.1 subject to Condition 1, conform to the Specification in all material respects; and
7.1.2 be free from material defects in design, materials or workmanship.
7.2 If, at any time during the Warranty Period, you become aware of a breach of either of the warranties at Condition 1, you will:
7.2.1 give written notice of the breach to us, such notice to be given within five (5) days after you become aware of the breach and prior to expiry of the Warranty Period;
7.2.2 at our option either return to us (at your cost) the relevant Good or permit us or our agent or sub-contractor to inspect it at your premises (in which case you will reimburse us for our reasonable expenses); and
7.2.3 provide us with all information and assistance which we may reasonably require to investigate the alleged breach.
7.3 Subject to Condition 4, our only Liability for breach of either of the warranties at Condition 7.1 will be, at our option, to repair or replace the relevant Good or to reduce the Price of the relevant Good by a sum which is equitable in the circumstances.
7.4 Your only remedy for breach of the obligation at Condition 3 will be in damages.
7.5 Subject to Condition 4, we will not have any Liability for a breach of a warranty at Condition 7.1 if or to the extent that:
7.5.1 you do not comply with your obligations at Condition 2 in respect of the breach;
7.5.2 the relevant defect was caused by damage in transit after Delivery;
7.5.3 the relevant defect was caused by fair wear and tear;
7.5.4 the relevant defect was drawn to your attention before formation of the Contract or the Good was examined by you before formation of the Contract and the examination ought to have revealed the defect;
7.5.5. the relevant defect was caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, storage or failure to comply with instructions provided by us or the manufacturer; or
7.5.6 you make further use of the relevant Good after discovering the relevant breach.
The warranties under Condition 7.1 will apply to any Goods which are repaired or replaced under Condition 7.3 for the remainder of the original Warranty Period.
7.6 Subject to Condition 4, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract.
8. EXCLUSIONS AND LIMITATIONS OF LIABILITY
Your attention is particularly drawn to this Condition.
8.1 Subject to Condition 4, our entire Liability for any non-delivery of Goods or failure to deliver the Goods in accordance with the timescales set out or referred to in the Contract will be as set out in Condition 4.4 and we will have no other Liability for any such non-delivery or failure to deliver. For the avoidance of doubt such Liability will be subject to Condition 8.2 and will be taken into account in calculating whether the financial limits in Condition 8.2have been reached.
8.2 Subject to Condition 4, our maximum aggregate Liability will be limited to £5 million.
8.3 We will have no Liability to you for any:
8.3.1 loss of profit (whether direct, indirect or consequential);
8.3.2 loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);
8.3.3. loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
8.3.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);
8.3.5 loss of bargain (whether direct, indirect or consequential);
8.3.6 liability that you have to third parties (whether direct, indirect or consequential); or
8.3.7 indirect, consequential or special loss
subject always to Condition 8.4.
8.4 Nothing in the Contract will operate to exclude or restrict one party’s Liability (if any) to the other:
8.4.1 for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);
8.4.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
8.4.3 for breach of its obligations arising under section 12 Sale of Goods Act 1979;
8.4.4 for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982;
8.4.5 for breach of its obligations arising under Section 8 Supply of Goods (Implied Terms) Act 1973;
8.4.6 arising under Section 2(3) Consumer Protection Act 1987;
8.4.7 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
8.5 Any of our Liability which falls within Condition 8.4 will not be taken into account in assessing whether any of the financial limits in Condition 8.2 has been reached.
8.6 Nothing in this Condition 8will prevent or restrict the right of a party to seek injunctive relief or specific performance or other discretionary remedies of the court.
9. YOUR OBLIGATIONS
9.1 You will:
9.1.1 provide us with all such information and assistance as we may reasonably require from time to time to perform our obligations under the Contract;
9.1.2 not re-package the Goods or remove or alter any trade marks, patent numbers, serial numbers or other identifying marks on the Goods or their packaging or add any other trade marks, patent numbers, serial numbers or other identifying marks to the Goods or their packaging;
9.1.3 not alter or modify the Goods in any way;
9.2 You will comply with our instructions in connection with any product recall initiated by us involving the Goods (or any of them).
9.3 Notwithstanding any other term of the Contract we will not be in breach of the Contract to the extent our failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of:
9.3.1 any breach by you of your obligations contained in the Contract provided that we use our reasonable endeavours to perform our obligations notwithstanding the breach by you;
9.3.2 us relying on any incomplete or inaccurate data provided by a third party; or
9.3.3 us complying with any instruction or request by you or one of your employees.
10.1 If you commit a material breach of the Contract we may terminate the Contract immediately by giving written notice to that effect to you.
10.2 We may terminate the Contract immediately by giving written notice to that effect to you if any of the events or circumstances set out in Condition 9.1 occur. You will notify us immediately upon the occurrence of any such event or circumstance.
10.3 Following expiry or termination of the Contract:
10.3.1 any Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract will continue in force; and
10.3.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
10.4 Within ten (10) days after the date of expiry or termination of the Contract each party will, subject to the exception set out in Condition 10.5
10.4.1 return to the other party all Confidential Information (including all copies and extracts) of the other party in its possession or control; and
10.4.2 cease to use the Confidential Information of the other party.
10.5 Each party may retain any Confidential Information of the other party which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting or taxation purposes. Condition 11will continue to apply to retained Confidential Information
11.1 Confidential Information” means any information (whether written, oral, in electronic form or in any other media) that:
11.1.1 is disclosed by or on behalf of a party (the “Discloser”) to the other party (the “Recipient”) in connection with the Contract and that relates (in whole or in part) to the Discloser or its business; and/or
11.1.2 relates to the terms of the Contract,
but excluding any information that falls within the exclusions set out in Condition 11.4.
11.2 The Recipient will:
11.2.1 keep the Confidential Information secret, safe and secure and will only disclose it in the manner and to the extent expressly permitted by the Contract; and
11.2.2 use the Confidential Information only to the extent necessary for the performance of its obligations under the Contract.
11.3 The Recipient may disclose Confidential Information:
11.3.1 to such of its officers and employees and, in our case, agents and sub-contractors, who need access to that Confidential Information for the purpose of complying with its obligations under the Contract;
11.3.2 to the extent necessary in order to be able to refer a dispute for resolution in accordance with Condition 2; and
11.3.3 to the extent required by applicable law or a court of competent jurisdiction or the rules of any listing authority, stock exchange, the Panel on Takeovers and Mergers or a regulatory authority.
11.4 The Recipient’s obligations under this Condition 11will not extend to Confidential Information which the Recipient can prove:
11.4.1 has ceased to be secret without default on the Recipient’s part;
11.4.2 was already in the Recipient’s possession prior to disclosure by or on behalf of the Discloser;
11.4.3 has been received from a third party who did not acquire it in confidence and who is free to make it available to the Recipient without limitation;
11.4.4 was independently developed by the Recipient without any breach of the Contract; or
11.4.5 at the time of disclosure was in the public domain or subsequently enters into the public domain without default of the Recipient.
11.5 The Recipient acknowledges and agrees that damages alone would not be an adequate remedy for breach of this Condition 11 by the Recipient. Accordingly, the Discloser will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of this Condition 11by the Recipient.
12. FORCE MAJEURE
12.1 We will not be in breach of the Contract or otherwise liable to you for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is due to a Force Majeure Event.
12.2 If a Force Majeure Event occurs:
12.2.1 we will as soon as reasonably practicable after becoming aware of the Force Majeure Event give written notice to you that the Force Majeure Event has occurred; and
12.2.2 we will use reasonable endeavours, without being required to incur additional expenditure, to mitigate the effects of the Force Majeure Event.
12.3 Subject to Condition 4, you will not be in breach of the Contract or otherwise liable to us for any failure to perform or delay in performing your obligations under the Contract to the extent that this is due to a Force Majeure Event affecting us.
12.4 If we are affected by a Force Majeure Event you will continue to pay our invoices in accordance with Condition 6 in respect of any Goods which we continue to supply notwithstanding the occurrence of the Force Majeure Event
12.5 If a Force Majeure Event which affects performance of all or substantially all of our obligations under the Contract and which gives rise to relief from liability under Condition 1 continues for a period of more than [ninety (90) days’, either party will be entitled to terminate the Contract by giving not less than thirty (30) days’ written notice to that effect to the other party.
13.1 Subject to Condition 4, any notice or other communication given under or in connection with the Contract will be in writing, in the English language and:
13.1.1 sent by pre-paid first class post, electronic mail or air mail if appropriate, to the relevant party’s address
13.1.2 delivered to or left at (but not, in either case, by post) the relevant party’s address; or
13.1.3 sent by facsimile or email to the relevant party’s facsimile number or email address
and, in the case of any notice or other communication to be given to us, marked for the attention of our specified representative. Our address, facsimile number and representative are set out below and your address and facsimile number are those detailed in the Order, and may be changed by the relevant party giving at least ten (10) Business Days notice in accordance with this Condition 13.
P C Henderson Ltd,
+44 (0) 191 377 3116
For the attention of: Company Secretary
13.2 Any notice or communication given in accordance with Condition 1 will be deemed to have been served:
13.2.1 if given as set out in Condition 1.1, at 9.00 a.m. on the first Business Day after the date of posting; and
13.2.2 if given as set out in Condition 1.2, at the time the notice or communication is delivered to or left at that party’s address; and
13.2.3 if given as set out in Condition 1.3, at the time of confirmation of completion of transmission of the facsimile by way of a transmission report; provided that if a notice or communication is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.
13.3 To prove service of a notice or communication it will be sufficient to prove that the provisions of Condition 1 were complied with.
13.4 This Condition 13 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
14.1 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
14.1.1 neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made to the first party or any other person) which is not expressly set out in the Contract;
14.1.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
14.1.3 nothing in this Condition 1will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
14.2 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
14.3 If any term of the Contract (including any exclusion from, or limitation of, liability set out in Condition 8) is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
14.4 No variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
14.5 Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
14.6 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
14.7 The parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
14.8 Our rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
14.9 You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of your rights under the Contract.
15. GOVERNING LAW AND JURISDICTION
15.1 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
15.2 Subject to Condition 3, each party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
15.3 Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.
1. This agreement forms the entire contract between the parties. In particular, and without prejudice to the generality of the foregoing, no terms and conditions, or representations, put forward by or on behalf of the seller shall form any part of this contract except with the written agreement of a duly authorised officer of P C Henderson Limited.
2. Not withstanding any rule of law to the contrary, no order is binding on P C Henderson Limited until such order has been acknowledged in writing by the supplier.
3. (i) the supplier unconditionally guarantees that all goods supplied pursuant to this contract comply with the general safety requirement as laid down in the Consumer Protection Act 1987 or any successor thereto. As part of that guarantee, the supplier will ensure that all goods supplied conform in full to the requirements of any safety regulations and approved safety standards as laid down by that Act or successor.
(ii) without prejudice to the provisions of (i) above, the supplier acknowledges that all purchases under this contract are subject to, and shall conform to, the requirements of section 4.5 of BS 5750, pt 2, 1987, or any revision thereof.
(iii) on request being made the supplier shall:
(a) supply full documentary proof of his compliance with the foregoing paragraphs of this clause.
(b) supply a certificate , signed by a senior member of the supplier’s staff who is responsible for quality and inspection, to the effect that the goods have been checked by the Quality Assurance Department as fully complying with the provisions of this agreement.
4. It shall be the duty of the supplier, within a reasonable time of his receipt of a request, to supply P C Henderson Limited with the name and address, and such other details as he has to hand, of any supplier to him of any product supplied to P C Henderson Limited under this contract, or any component part thereof, or of any material or ingredient used in the preparation or construction of any such product.
5. It shall be the duty of the supplier to keep P C Henderson Limited fully aware and up-to-date of and on any safety issues affecting any goods supplied under this contract of which the supplier is or ought reasonably to be aware. In the first instance, such duty shall last for 10 years from the date of the supply of the contract goods, but such period may be extended by P C Henderson Limited at any time before it has expired for a further period of up to 5 years.
6. Where appropriate, or where so requested by P C Henderson Limited, all goods supplied under this contract shall be accompanied by suitable instructions and safety advice written in plain English. Without prejudice to the generality of the foregoing, all goods must carry clear indications as to any special care to be taken in handling or construction.
7. Without prejudice to the provisions of clause 3 above, the supplier agrees to supply only those goods which are free of all defects, latent or otherwise, which could in any way render the goods harmful to person or property, which are in all respects entirely suitable for P C Henderson Limited’s purpose (as to which the supplier agrees he was fully informed prior to the conclusion of this contract) and which are of a commercially acceptable durability.
8. (i) Any time stated for delivery shall be of the essence of the contract, and delivery shall be made on the appropriate day between 8.00a.m. and 4.00p.m. (Monday to Friday). However, where goods are delivered before the agreed time, they shall be returned to the supplier, or held at the place of delivery, in both cases at the expense and risk of the supplier.
(ii) The goods shall be delivered to such point as may be specified in the contract.
(iii) Where a delivery point is agreed in the contract, a different point will only be accepted if the party suggesting the alteration agrees to bear all the costs and expenses necessarily borne by the other party.
(iv) Advice notes stating order number, P C Henderson Limited part number(s) and contents should be sent with each delivery.
(v) Except where agreed in the contract, deliveries shall not be in instalments.
(vi) Invoices stating the order number and particulars of delivery should be sent by post to P C Henderson Limited at the time of despatch.
9. The goods shall be at the risk of the supplier until such time as they are received by P C Henderson Limited at the point of delivery (as agreed upon or subsequently altered) and acknowledged by them to be in conformity with the contract.
10. The property in the goods shall pass to P C Henderson Limited from the moment when the goods are allocated by the supplier to this contract. The supplier further guarantees that the goods are subject to no charge or encumbrance or any third party right as to the title in this goods.
11. (i) It is expressly agreed between the parties that any time agreed for payment is not of the essence of the contract. Furthermore, the price paid is deemed to be inclusive, except where the contrary has been agreed, of all carriage charges, taxes, duties and other imposts which the supplier is required by law to charge.
(ii) No change may be made to the agreed price, otherwise than with the consent of P C Henderson Limited, except where this is required because of a change in such taxes, duties or other imposts as are referred to in (i) above. Where such a change increases the sum to be paid by P C Henderson Limited, it shall have the option of terminating the contract without further liability, but without prejudice to its liability for sums already owing.
12. (i) Where the goods are to undergo any form of transit, the goods will be packed and secured in such a manner that they will be able to withstand the normal incidents of that transit. For the avoidance of doubt, it is hereby declared that the duty imposed by this clause also applies where the whole or any part of the course of transit is undertaken by servants, agents or employees of P C Henderson Limited or pursuant to a contract arranged by them.
(ii) Where requested by P C Henderson Limited, the supplier shall effect an appropriate contract of insurance to cover the goods during such transit as is referred to in (I) above. Where such a contract is effected, a copy of the policy shall be forwarded by post to P C Henderson Limited and the supplier shall, on request assign to P C Henderson Limited all rights and benefits arising under that contract.
13. (i) Where due performance of the contact is hindered or prevented by circumstances beyond the reasonable control of either party, the party so effected may, by notice in writing to the other, suspend or terminate the contact at its discretion without any liability on its part but without prejudice to any liability outstanding at the time. Where the relevant party elects to suspend the contact, he may subsequently elect to terminate the contract (with the same consequences as to liability as if the contract had been terminated in the first place) if due performance remains hindered or prevented for more than a reasonable time following the election to suspend.
(ii) Without prejudice to the expression “Circumstances beyond the reasonable control of either party” used in the previous paragraph, this shall be taken to include acts of God, war, civil unrest, riot, strikes, lockouts and any other forms of industrial action, fire, floods or exceptional weather conditions.
14. (i) Where there has been a breach of any of the provisions of this contract, P C Henderson Limited, without prejudice to its other rights, will be entitled to compensation for all damage, loss (including but not limited to loss of profits), costs, expenses and payments of any kind howsoever caused and arising directly or indirectly from the breach.
(ii) In the event of a breach as described above, and again without prejudice to its other rights, but in addition to the rights expressly given in paragraph (I) P C Henderson Limited will be entitled to terminate the contract, return the goods at the risk and expense of the supplier, to demand a replacement for the relevant goods, or to demand repair of the same (with or without an abatement of price) whichever of any or all of these options it shall in its entire discretion choose.
16. Where the supplier provides P C Henderson Limited with goods which replace the contract goods (whether under clauses 14 (ii) above or otherwise), the terms of this contract shall apply equally to those replacement goods.
17. The supplier agrees that the contract goods shall not in any way cause or give rise to any breach of any provisions (whether statutory, common law or contractual or of any other nature) regarding registered trace or service marks, registered designs letters patent, copyright or any other right whatsoever in intellectual property.
18. This contact is personal to the supplier and can only be assigned or sub-contacted by him with the written consent of P C Henderson Limited. In the event of such consent being given, the supplier remains fully responsible under this contract as though there had been no assignment or sub-contract.
19. P C Henderson Limited shall be entitled at all reasonable times to inspect the goods at the supplier’s premises for whatever reason it thinks fit: provided that such inspection, and nothing said or done by P C Henderson Limited in consequence of that inspection, shall in any way operate to prejudice or detract from its rights in relation to any duty imposed on the supplier by this contract.
20. The waiver of any terms of this contract by P C Henderson Limited shall operate only in relation to the specific circumstances of that waiver and shall in no way affect the binding nature of such term or any other term of the contract.
21. This contract is subject to English law and the courts of England shall have sole and exclusive jurisdiction to hear and determine any disputes arising: provided that the parties may agree to submit any such dispute to binding arbitration.