The Customer's attention is particularly drawn to the provisions of clause 14 (Limitation of liability).
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Handy issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Acceptance Date”).
2.3 Any samples, drawings, descriptive matter or advertising issued by Handy and any descriptions of the Goods or illustrations or descriptions of the Services contained in Handy's catalogues or brochures 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 the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by Handy shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS
3.1 The Goods are described in Handy’s literature or on Handy’s website.
3.2 To the extent that the Goods are to be manufactured in accordance with a goods specification supplied by the Customer, the Customer shall indemnify Handy against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Handy arising out of or in connection with any claim made against Handy for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Handy's use of such goods specification. This clause 3.2 shall survive termination of the Contract.
3.3 Handy reserves the right to amend the Goods Specification or goods specification agreed with the Customer if required by any applicable statutory or regulatory requirement.
4. DELIVERY OF GOODS
4.1 Handy shall ensure that: each delivery of the Goods is accompanied by a delivery note that: shows the date of the Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is a call-off Order (see clause 5) or otherwise being delivered by instalments, details of the outstanding balance of Goods remaining to be delivered or called-off;
4.2 Where Handy is to deliver the Goods: Subject to clause 4.3, Handy shall usually deliver the Goods to the Delivery Location during the Delivery Window. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.3 The Customer shall notify Handy of its standard working days and working hours when submitting its Order, and make itself available to accept delivery of the Goods at the Delivery Location during the Delivery Window.
4.4 Should the Customer fail to comply with clause 4.3 then all redelivery costs associated with redelivery of the Goods shall be borne solely by the Customer.
4.5 Where the Customer is to collect the Goods: The Customer shall collect the Goods from the Delivery Location within the Collection Window. Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
4.6 Any dates quoted for delivery of the Goods, or making the Goods available for collection, are approximate only, and the time of delivery is not of the essence. Handy shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Handy with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If Handy fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Handy shall have no liability for loss of production and any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Handy with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.8 If the Customer fails to take or accept delivery of the Goods within the Delivery Window or Collection Window (as appropriate), then except where such failure or delay is caused by a Force Majeure Event or by Handy's failure to comply with its obligations under the Contract in respect of the Goods:
4.8.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day following the day on which Handy notified the Customer that the Goods were ready; and
4.8.2 Handy shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.9 If ten Business Days after the day on which Handy notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, Handy may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.10 If Handy delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Handy shall make a pro rata adjustment to the invoice for the Goods.
4.11 Handy may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. ORDERS PLACED FOR CALL-OFF OR SCHEDULED ORDERS
5.1 Where an Order is described as a ‘call-off’ order, Handy shall hold the Goods at its storage facilities pending a Requisition Notice (“Call-off Goods”).
5.2 At any time on request by the Customer, Handy shall provide the Customer with details of all Call-off Goods held by it.
5.3 Handy shall store the Call-off Goods for a maximum storage period of 6 months from the Acceptance Date only (“Maximum Storage Period”).
5.4 The Customer may during Handy’s working hours on a Business Day send to Handy a notice (“Requisition Notice”) specifying the amount of Call-off Goods which it requests Handy to deliver to the Delivery Location (see clause 5.6) or make available for the Customer to collect from the Delivery Location (see clause 5.7).
5.5 Each Requisition Notice shall include the following information:
5.5.1 details of the specific Goods from the Call-off Goods which the Customer requests Handy to deliver or make available for the Customer to collect ; and
5.5.2 the quantity in units of Goods from the Call-off Goods which the Customer requests Handy to deliver or make available for the Customer to collect.
5.6 Where Handy is to deliver the Call-off Goods: Handy shall use its reasonable endeavours to deliver the Call-off Goods to the Delivery Location pursuant to a Requisition Notice within the Delivery Window , but time for delivery shall not be of the essence. In relation to such delivery:
5.6.1 clauses 4.1 – 4.10 (inclusive) shall apply; and
5.6.2 any delay in delivery or defect in an instalment shall not entitle the Customer to cancel the Order.
5.7 Where the Customer is to collect the Call-off Goods: The Customer shall collect the Call-off Goods from the Delivery Location within the Collection Window.. In relation to such delivery by collection:
5.7.1 clauses 4.1 – 4.10 (inclusive) shall apply; and
5.7.2 any delay in delivery or defect in an instalment shall not entitle the Customer to cancel the Order.
5.8 Notwithstanding anything to the contrary in these Conditions, Handy may issue its invoice for the Call-off Goods subject to a Requisition Notice at any time after such Call-off Goods have been delivered to the Customer, deemed delivered under the terms of these Conditions or made available for collection by Handy. The Customer shall pay Handy’s invoice within the payment period set out in Handy’s acceptance of the Order, or as may otherwise be agreed by Handy or otherwise set out on Handy’s invoice.
5.9 Upon the earlier of: (a) termination of the Contract for any reason; or (b) the expiry of the Maximum Storage Period; the Customer shall be deemed to have submitted a Requisition Notice for all the remaining Call-off Goods in Handy’s possession, custody or control (“Remaining Call-off Goods”). Handy may invoice the Remaining In-Stock Goods immediately and shall use its reasonable endeavours to: deliver the Remaining In-Stock Goods to the Customer as soon as possible or make the Remaining Call-off-Stock Goods available for collection from the Delivery Location as soon as reasonably possible.
6. QUALITY OF GOODS
6.1 Except as otherwise provided in clause 6.2, Handy warrants that on delivery, and for a period of 6 months from the date of delivery (“Warranty Period”), the Goods shall:
6.1.1 conform in all material respects with their description and any applicable Goods Specification or goods specification agreed with the Customer;
6.1.2 be free from material defects in design, material and workmanship;
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4 be fit for any purpose held out by Handy.
6.2 In respect of Goods that are tufting needles, the warranties set out in clauses 6.1.1 to 6.1.4 (inclusive) shall apply on delivery only.
6.3 Subject to clause 6.4, Handy shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
6.3.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.3.2 Handy is given a reasonable opportunity of examining such Goods; and
6.3.3 the Customer (if asked to do so by Handy) returns such Goods to Handy's place of business at Handy’s cost.
6.4 Handy shall not be liable for the Goods' failure to comply with the warranty in clause 6.1 if:
6.4.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.3;
6.4.2 the defect arises because the Customer failed to follow Handy's oral or written instructions as to the storage (in the absence of specific instructions, storage shall be in a dry, clean, temperate indoor environment), installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
6.4.3 the defect arises as a result of Handy following any drawing, design or goods specification supplied by, or otherwise agreed with, the Customer;
6.4.4 the Customer alters or repairs such Goods without the written consent of Handy;
6.4.5 the defect arises as a result of fair wear and tear, misuse, wilful damage, negligence, or abnormal working conditions;
6.4.6 in the case of fire retardant Goods only, the Customer has compromised the fire retardancy of the Goods; or
6.4.7 the Goods differ from their description and any applicable Goods Specification or goods specification agreed with the Customer as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.5 Except as provided in this clause 6, Handy shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Handy.
6.7 Where Goods are stated by Handy to be fire retardant, Handy has tested them to standard BS 7177 (match and cigarette test). The Customer is cautioned that the fire retardant performance of the Goods may be compromised when the Customer integrates the Goods into their own products. Accordingly, the Customer is specifically advised to independently test the Goods once they have been integrated into the Customer’s own products to ensure they comply with relevant fire retardancy standards.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
7.2.1 Handy receives payment in full (in cash or cleared funds) for the Goods and any other goods that Handy has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
7.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Handy's property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Handy's behalf from the date of delivery;
7.3.4 notify Handy immediately if it becomes subject to any of the events listed in clause 15.1.1 to clause 15.1.18; and
7.3.5 give Handy such information relating to the Goods as Handy may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Handy receives payment for the Goods. However, if the Customer resells the Goods before that time:
7.4.1 it does so as principal and not as Handy’s agent; and
7.4.2 title to the Goods shall pass from Handy to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1.1 to clause 15.1.18, then, without limiting any other right or remedy Handy may have:
7.5.1 the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 Handy may at any time:
7.5.2.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
7.5.2.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 Handy shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 Handy shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 Handy reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
8.4 Handy warrants to the Customer that the Services will be provided using reasonable care and skill.
8.5 Title to the customers button material for covering shall not pass to Handy at any time.
8.6 Risk in the Button Material shall pass to Handy as set out in clause 9.1.5 and risk in the Covered Buttons shall pass to the Customer as set out in clause 10.1 and 10.4.1.
8.7 Risk in the Bagging Material shall pass to Handy and back to the Customer as set out in clause 9.1.6.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
9.1.1 ensure that the terms of the Order and any information it provides to Handy is complete and accurate;
9.1.2 co-operate with Handy in all matters relating to the Services;
9.1.3 provide Handy, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Handy to provide the Services;
9.1.4 provide Handy (at the Customer’s own cost) with such documents, information, items and materials as Handy may reasonably require in order to supply the Services, and ensure that such documents, information, items and material are complete and accurate in all material respects;
9.1.5 where the Services are, or include, the Button Covering Service the Customer shall at its own cost deliver to Handy fabric for button covering (“Button Material”) in such quantities on such dates agreed with Handy, in good condition and suitable to be subjected to the Button Covering Service. Risk in the Button Material shall pass to Handy upon Handy taking physical possession of the Button Material; and
9.1.6 where the Services are, or include, the Bagging Service, the Customer shall at its own cost deliver to Handy the Customer’s own components (“Bagging Material”) in such quantities on such dates agreed with Handy, in good condition and suitable to be subjected to the Bagging Service. Risk in the Bagging Material shall pass to Handy upon Handy taking physical possession of the Bagging Material. Risk in the Bagging Material shall pass to the Customer upon delivery to the Customer.
9.2 If Handy's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
9.2.1 without limiting or affecting any other right or remedy available to it, Handy shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Handy's performance of any of its obligations;
9.2.2 Handy shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Handy's failure or delay to perform any of its obligations as set out in this clause 9.2; and
9.2.3 the Customer shall reimburse Handy on written demand for any costs or losses sustained or incurred by Handy arising directly or indirectly from the Customer Default.
10. COVERED BUTTONS
10.1 Handy shall deliver the Covered Buttons to the Delivery Location within three Business Days of Handy notifying the Customer that the Covered Buttons concerned are ready for delivery or such other period as is expressly agreed by Handy. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location. Risk in such Covered Buttons shall pass to the Customer on completion of delivery. Risk in any unused Button Materials shall pass to the Customer on delivery.
10.2 Handy shall supply the Button Covering Service in relation to the Button Materials by instalments, and invoice such instalments separately.
10.3 Delays in the performance of the Button Covering Service, or the return of Covered Buttons, shall not entitle the Customer to:
10.3.1 refuse to take delivery of the Covered Buttons;
10.3.2 claim damages; or
10.3.3 terminate the Contract.
10.4 If the Customer fails to take delivery of the Covered Buttons concerned when tendered for delivery under clause 10.1, Handy may attempt to redeliver on one more occasion at Handy’s cost, then, except where that failure or delay is caused by Handy’s failure to comply with its obligations under the Contract:
10.4.1 delivery of the Covered Buttons concerned shall be deemed to have been completed, and risk in the Covered Buttons concerned shall pass to the Customer, at 5pm on the third Business Day following the day on which Handy tendered the Covered Buttons for delivery; and
10.4.2 Handy shall store the Covered Buttons concerned until delivery takes place, and charge the Customer for all related costs and expenses.
11. CHARGES AND PAYMENT
11.1 The price for Goods or Services, or both:
11.1.1 shall be the price set out in Handy’s written acceptance of the Order or, if no price is quoted, the price set out in Handy's published price list as at the date of the Order; and
11.1.2 shall be exclusive of all costs and charges of packaging, insurance, and transport.
11.2 Handy shall not be bound by any pricing error in Handy’s written acceptance of the Order or Handy’s published price list. In the event of such pricing error, Handy shall notify the Customer as soon as Handy becomes aware of the pricing error (“Error Notice”) and the price for the Goods or Services, or both, shall immediately be increased to the correct price. The Customer shall be deemed to accept the price increase to the correct price unless the Customer serves written notice on the Customer terminating the Order within 7-days of receiving the Error Notice.
11.3 Whereby the Customer fails to comply with the Conditions Handy reserves the right to revoke any settlement discounts that may have been agreed between the parties from time to time.
11.4 Handy reserves the right to increase its prices at anytime in respect of an Order after it has been accepted by Handy due to:
11.4.1 any request by the Customer to change the Order after it has been accepted by Handy; or
11.4.2 any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give Handy adequate or accurate information or instructions in respect of the Goods or Services.
11.5 In respect of Goods and Services, Handy shall invoice the Customer on or at any time after completion of delivery.
11.6 The Customer shall pay each invoice submitted by Handy:
11.6.1 within the payment period set out in Handy’s acceptance of the Order, or as may otherwise be agreed by Handy or otherwise set out on Handy’s invoice; and
11.6.2 in full and in cleared funds to a bank account nominated in writing by Handy, and
time for payment shall be of the essence of the Contract.
11.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Handy to the Customer, the Customer shall, on receipt of a valid VAT invoice from Handy, pay to Handy such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11.8 If the Customer fails to make a payment due to Handy under the Contract by the due date, then, without limiting Handy's remedies under clause 15 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 11.8 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
11.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Handy.
12.2 Handy grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
12.3 The Customer grants Handy a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Handy for the term of the Contract for the purpose of providing the Services to the Customer.
13. CONFIDENTIALITY
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party's confidential information:
13.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
13.4 This clause 13 shall survive termination of the Contract.
14. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
14.3.1 death or personal injury caused by negligence;
14.3.2 fraud or fraudulent misrepresentation; and
14.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.4 Subject to clause 14.3, Handy's total liability to the Customer shall not exceed:
14.4.1 in the case of Goods, one hundred and fifty per cent (150%) of the price for the Goods in the Order in respect of which the liability occurred; or
14.4.2 in the case of Services, one hundred and fifty per cent (150%) of the price for the Services in respect of which the liability occurred.
14.5 This clause 14.5 sets out specific heads of excluded loss:
14.5.1 Subject to clause 14.3, the types of loss listed in clause 14.5.2 are wholly excluded by the parties.
14.5.2 The following types of loss are wholly excluded:
14.5.2.1 loss of profits;
14.5.2.2 loss of sales or business;
14.5.2.3 loss of agreements or contracts;
14.5.2.4 loss of anticipated savings;
14.5.2.5 loss of use or corruption of software, data or information;
14.5.2.6 loss of or damage to goodwill; and
14.5.2.7 indirect or consequential loss.
14.6 Handy has given commitments as to compliance of the Goods and Services with relevant specifications in clause 6 and clause 8. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.7 Unless the Customer notifies Handy that it intends to make a claim in respect of an event within the notice period, Handy shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.8 This clause 14 shall survive termination of the Contract.
15. TERMINATION
15.1 Without affecting any other right or remedy available to it, Handy may terminate the Contract with immediate effect by giving written notice to the Customer if:
15.1.1 the Customer commits a breach of the Contract and such breach is not remediable;
15.1.2 the Customer commits a breach of the Contract which is not remedied within 30-days of receiving written notice of such breach;
15.1.3 the Customer has failed to pay any amount due under the Contract on the due date;
15.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled;
15.1.5 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.1.6 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Handy reasonably believes that to be the case;
15.1.7 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.1.8 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
15.1.9 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
15.1.10 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
15.1.11 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.1.12 has a resolution passed for its winding up;
15.1.13 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
15.1.14 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
15.1.15 has a freezing order made against it;
15.1.16 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
15.1.17 is subject to any events or circumstances analogous to those in clauses 15.1.5 to 15.1.16 in any jurisdiction; or
15.1.18 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 15.1.5 to 15.1.17 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
15.2 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle Handy to terminate the Contract under this clause 15, it shall immediately notify Handy in writing.
15.3 Without affecting any other right or remedy available to it, Handy may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Handy if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.1.5 to clause 15.1.17, or clause 15.1.18 applies.
16. CONSEQUENCES OF TERMINATION
16.1 On termination of the Contract:
16.1.1 the Customer shall immediately pay to Handy all of Handy's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Handy shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.1.2 the Customer shall return any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then Handy may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
17. FORCE MAJEURE
17.1 Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (such as a national or local lockdown, pandemic and/or epidemic) (a “Force Majeure Event”).
18. GENERAL
18.1 Assignment and other dealings
18.1.1 Handy may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
18.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Handy.
18.2 Notices.
18.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
18.2.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
18.2.1.2 sent by fax to its main fax number or sent by email to the address specified in the Order, provided a confirmatory copy is sent by first class post.
18.2.2 Any notice or communication shall be deemed to have been received:
18.2.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
18.2.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
18.2.2.3 if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 18.2.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
18.2.3 This clause 18.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 18.3 shall not affect the validity and enforceability of the rest of the Contract.
18.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.6 Entire agreement.
18.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
18.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
18.7 Third party rights.
18.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
18.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
| Acceptance Date | has the meaning given in clause 2.2. |
| Bagging Material | has the meaning given in clause 9.1.6. |
| Bagging Service | the supply of pre bagged components to the Customer’s specification. |
| Business Day | a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
| Button Covering Service | the supply of finished covered buttons covered in material supplied by the Customer. |
| Button Material | has the meaning given in clause 9.1.5. |
| Call-off Goods | has the meaning given in clause 5.1. |
| Collection Window | in respect of an Order that is not for Call-off Goods, a period of two or three Business Days from the Acceptance Date or such other period as is expressly agreed by Handy; and in respect of Call-off Goods, a period of two or three Business Days from receipt of a Requisition Notice or such other period as is expressly agreed by Handy. |
| Conditions | these terms and conditions as amended from time to time in accordance with clause 18.8. |
| Contract | the contract between Handy and the Customer for the supply of Goods and/or Services in accordance with these Conditions. |
| Covered Buttons | buttons covered in the Customer’s own material following supply of the Button Covering Service. |
| Customer | the person or firm who purchases the Goods and/or Services from Handy. |
| Deliverables | the deliverables set out in the Order. |
| Delivery Location | the delivery location set out in the Order. |
| Delivery Window | in respect of an Order that is not for Call-off Goods, a period of two or three Business Days from the Acceptance Date or such other period as is expressly agreed by Handy; and in respect of Call-off Goods, a period of two or three Business Days from receipt of a Requisition Notice or such other period as is expressly agreed by Handy. |
| Force Majeure Event | has the meaning given to it in clause 17. |
| Goods | the goods (or any part of them) set out in the Order (which, for the avoidance of doubt, shall include Call-off Goods). |
| Goods Specification | any specification for the Goods, including any relevant plans or drawings, issued by Handy from time to time. |
| Handy | Handy Limited registered in England and Wales with company number 02614024. |
| Intellectual Property Rights | patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. |
| Order | the Customer's order for the supply of Goods and/or Services, as set out in: the Customer's purchase order form; the Customer's written acceptance of Handy’s quotation: the Customer’s email; verbal communication (such as a telephone call) between the parties; or the Customer’s text message (as the case may be). |
| Service Specification | the description or specification for the Services provided by Handy to the Customer as part of Handy’s acceptance of Order. |
| Services | the services (including, if applicable, the Button Covering Service and Bagging Service), including the Deliverables, set out in the Order. |
| Requisition Notice | has the meaning given in clause 5.4. |
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Handy issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Acceptance Date”).
2.3 Any samples, drawings, descriptive matter or advertising issued by Handy and any descriptions of the Goods or illustrations or descriptions of the Services contained in Handy's catalogues or brochures 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 the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by Handy shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS
3.1 The Goods are described in Handy’s literature or on Handy’s website.
3.2 To the extent that the Goods are to be manufactured in accordance with a goods specification supplied by the Customer, the Customer shall indemnify Handy against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Handy arising out of or in connection with any claim made against Handy for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Handy's use of such goods specification. This clause 3.2 shall survive termination of the Contract.
3.3 Handy reserves the right to amend the Goods Specification or goods specification agreed with the Customer if required by any applicable statutory or regulatory requirement.
4. DELIVERY OF GOODS
4.1 Handy shall ensure that: each delivery of the Goods is accompanied by a delivery note that: shows the date of the Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is a call-off Order (see clause 5) or otherwise being delivered by instalments, details of the outstanding balance of Goods remaining to be delivered or called-off;
4.2 Where Handy is to deliver the Goods: Subject to clause 4.3, Handy shall usually deliver the Goods to the Delivery Location during the Delivery Window. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.3 The Customer shall notify Handy of its standard working days and working hours when submitting its Order, and make itself available to accept delivery of the Goods at the Delivery Location during the Delivery Window.
4.4 Should the Customer fail to comply with clause 4.3 then all redelivery costs associated with redelivery of the Goods shall be borne solely by the Customer.
4.5 Where the Customer is to collect the Goods: The Customer shall collect the Goods from the Delivery Location within the Collection Window. Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
4.6 Any dates quoted for delivery of the Goods, or making the Goods available for collection, are approximate only, and the time of delivery is not of the essence. Handy shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Handy with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If Handy fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Handy shall have no liability for loss of production and any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Handy with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.8 If the Customer fails to take or accept delivery of the Goods within the Delivery Window or Collection Window (as appropriate), then except where such failure or delay is caused by a Force Majeure Event or by Handy's failure to comply with its obligations under the Contract in respect of the Goods:
4.8.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day following the day on which Handy notified the Customer that the Goods were ready; and
4.8.2 Handy shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.9 If ten Business Days after the day on which Handy notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, Handy may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.10 If Handy delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Handy shall make a pro rata adjustment to the invoice for the Goods.
4.11 Handy may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. ORDERS PLACED FOR CALL-OFF OR SCHEDULED ORDERS
5.1 Where an Order is described as a ‘call-off’ order, Handy shall hold the Goods at its storage facilities pending a Requisition Notice (“Call-off Goods”).
5.2 At any time on request by the Customer, Handy shall provide the Customer with details of all Call-off Goods held by it.
5.3 Handy shall store the Call-off Goods for a maximum storage period of 6 months from the Acceptance Date only (“Maximum Storage Period”).
5.4 The Customer may during Handy’s working hours on a Business Day send to Handy a notice (“Requisition Notice”) specifying the amount of Call-off Goods which it requests Handy to deliver to the Delivery Location (see clause 5.6) or make available for the Customer to collect from the Delivery Location (see clause 5.7).
5.5 Each Requisition Notice shall include the following information:
5.5.1 details of the specific Goods from the Call-off Goods which the Customer requests Handy to deliver or make available for the Customer to collect ; and
5.5.2 the quantity in units of Goods from the Call-off Goods which the Customer requests Handy to deliver or make available for the Customer to collect.
5.6 Where Handy is to deliver the Call-off Goods: Handy shall use its reasonable endeavours to deliver the Call-off Goods to the Delivery Location pursuant to a Requisition Notice within the Delivery Window , but time for delivery shall not be of the essence. In relation to such delivery:
5.6.1 clauses 4.1 – 4.10 (inclusive) shall apply; and
5.6.2 any delay in delivery or defect in an instalment shall not entitle the Customer to cancel the Order.
5.7 Where the Customer is to collect the Call-off Goods: The Customer shall collect the Call-off Goods from the Delivery Location within the Collection Window.. In relation to such delivery by collection:
5.7.1 clauses 4.1 – 4.10 (inclusive) shall apply; and
5.7.2 any delay in delivery or defect in an instalment shall not entitle the Customer to cancel the Order.
5.8 Notwithstanding anything to the contrary in these Conditions, Handy may issue its invoice for the Call-off Goods subject to a Requisition Notice at any time after such Call-off Goods have been delivered to the Customer, deemed delivered under the terms of these Conditions or made available for collection by Handy. The Customer shall pay Handy’s invoice within the payment period set out in Handy’s acceptance of the Order, or as may otherwise be agreed by Handy or otherwise set out on Handy’s invoice.
5.9 Upon the earlier of: (a) termination of the Contract for any reason; or (b) the expiry of the Maximum Storage Period; the Customer shall be deemed to have submitted a Requisition Notice for all the remaining Call-off Goods in Handy’s possession, custody or control (“Remaining Call-off Goods”). Handy may invoice the Remaining In-Stock Goods immediately and shall use its reasonable endeavours to: deliver the Remaining In-Stock Goods to the Customer as soon as possible or make the Remaining Call-off-Stock Goods available for collection from the Delivery Location as soon as reasonably possible.
6. QUALITY OF GOODS
6.1 Except as otherwise provided in clause 6.2, Handy warrants that on delivery, and for a period of 6 months from the date of delivery (“Warranty Period”), the Goods shall:
6.1.1 conform in all material respects with their description and any applicable Goods Specification or goods specification agreed with the Customer;
6.1.2 be free from material defects in design, material and workmanship;
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4 be fit for any purpose held out by Handy.
6.2 In respect of Goods that are tufting needles, the warranties set out in clauses 6.1.1 to 6.1.4 (inclusive) shall apply on delivery only.
6.3 Subject to clause 6.4, Handy shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
6.3.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.3.2 Handy is given a reasonable opportunity of examining such Goods; and
6.3.3 the Customer (if asked to do so by Handy) returns such Goods to Handy's place of business at Handy’s cost.
6.4 Handy shall not be liable for the Goods' failure to comply with the warranty in clause 6.1 if:
6.4.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.3;
6.4.2 the defect arises because the Customer failed to follow Handy's oral or written instructions as to the storage (in the absence of specific instructions, storage shall be in a dry, clean, temperate indoor environment), installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
6.4.3 the defect arises as a result of Handy following any drawing, design or goods specification supplied by, or otherwise agreed with, the Customer;
6.4.4 the Customer alters or repairs such Goods without the written consent of Handy;
6.4.5 the defect arises as a result of fair wear and tear, misuse, wilful damage, negligence, or abnormal working conditions;
6.4.6 in the case of fire retardant Goods only, the Customer has compromised the fire retardancy of the Goods; or
6.4.7 the Goods differ from their description and any applicable Goods Specification or goods specification agreed with the Customer as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.5 Except as provided in this clause 6, Handy shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Handy.
6.7 Where Goods are stated by Handy to be fire retardant, Handy has tested them to standard BS 7177 (match and cigarette test). The Customer is cautioned that the fire retardant performance of the Goods may be compromised when the Customer integrates the Goods into their own products. Accordingly, the Customer is specifically advised to independently test the Goods once they have been integrated into the Customer’s own products to ensure they comply with relevant fire retardancy standards.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
7.2.1 Handy receives payment in full (in cash or cleared funds) for the Goods and any other goods that Handy has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
7.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Handy's property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Handy's behalf from the date of delivery;
7.3.4 notify Handy immediately if it becomes subject to any of the events listed in clause 15.1.1 to clause 15.1.18; and
7.3.5 give Handy such information relating to the Goods as Handy may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Handy receives payment for the Goods. However, if the Customer resells the Goods before that time:
7.4.1 it does so as principal and not as Handy’s agent; and
7.4.2 title to the Goods shall pass from Handy to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1.1 to clause 15.1.18, then, without limiting any other right or remedy Handy may have:
7.5.1 the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 Handy may at any time:
7.5.2.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
7.5.2.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 Handy shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 Handy shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 Handy reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
8.4 Handy warrants to the Customer that the Services will be provided using reasonable care and skill.
8.5 Title to the customers button material for covering shall not pass to Handy at any time.
8.6 Risk in the Button Material shall pass to Handy as set out in clause 9.1.5 and risk in the Covered Buttons shall pass to the Customer as set out in clause 10.1 and 10.4.1.
8.7 Risk in the Bagging Material shall pass to Handy and back to the Customer as set out in clause 9.1.6.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
9.1.1 ensure that the terms of the Order and any information it provides to Handy is complete and accurate;
9.1.2 co-operate with Handy in all matters relating to the Services;
9.1.3 provide Handy, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Handy to provide the Services;
9.1.4 provide Handy (at the Customer’s own cost) with such documents, information, items and materials as Handy may reasonably require in order to supply the Services, and ensure that such documents, information, items and material are complete and accurate in all material respects;
9.1.5 where the Services are, or include, the Button Covering Service the Customer shall at its own cost deliver to Handy fabric for button covering (“Button Material”) in such quantities on such dates agreed with Handy, in good condition and suitable to be subjected to the Button Covering Service. Risk in the Button Material shall pass to Handy upon Handy taking physical possession of the Button Material; and
9.1.6 where the Services are, or include, the Bagging Service, the Customer shall at its own cost deliver to Handy the Customer’s own components (“Bagging Material”) in such quantities on such dates agreed with Handy, in good condition and suitable to be subjected to the Bagging Service. Risk in the Bagging Material shall pass to Handy upon Handy taking physical possession of the Bagging Material. Risk in the Bagging Material shall pass to the Customer upon delivery to the Customer.
9.2 If Handy's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
9.2.1 without limiting or affecting any other right or remedy available to it, Handy shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Handy's performance of any of its obligations;
9.2.2 Handy shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Handy's failure or delay to perform any of its obligations as set out in this clause 9.2; and
9.2.3 the Customer shall reimburse Handy on written demand for any costs or losses sustained or incurred by Handy arising directly or indirectly from the Customer Default.
10. COVERED BUTTONS
10.1 Handy shall deliver the Covered Buttons to the Delivery Location within three Business Days of Handy notifying the Customer that the Covered Buttons concerned are ready for delivery or such other period as is expressly agreed by Handy. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location. Risk in such Covered Buttons shall pass to the Customer on completion of delivery. Risk in any unused Button Materials shall pass to the Customer on delivery.
10.2 Handy shall supply the Button Covering Service in relation to the Button Materials by instalments, and invoice such instalments separately.
10.3 Delays in the performance of the Button Covering Service, or the return of Covered Buttons, shall not entitle the Customer to:
10.3.1 refuse to take delivery of the Covered Buttons;
10.3.2 claim damages; or
10.3.3 terminate the Contract.
10.4 If the Customer fails to take delivery of the Covered Buttons concerned when tendered for delivery under clause 10.1, Handy may attempt to redeliver on one more occasion at Handy’s cost, then, except where that failure or delay is caused by Handy’s failure to comply with its obligations under the Contract:
10.4.1 delivery of the Covered Buttons concerned shall be deemed to have been completed, and risk in the Covered Buttons concerned shall pass to the Customer, at 5pm on the third Business Day following the day on which Handy tendered the Covered Buttons for delivery; and
10.4.2 Handy shall store the Covered Buttons concerned until delivery takes place, and charge the Customer for all related costs and expenses.
11. CHARGES AND PAYMENT
11.1 The price for Goods or Services, or both:
11.1.1 shall be the price set out in Handy’s written acceptance of the Order or, if no price is quoted, the price set out in Handy's published price list as at the date of the Order; and
11.1.2 shall be exclusive of all costs and charges of packaging, insurance, and transport.
11.2 Handy shall not be bound by any pricing error in Handy’s written acceptance of the Order or Handy’s published price list. In the event of such pricing error, Handy shall notify the Customer as soon as Handy becomes aware of the pricing error (“Error Notice”) and the price for the Goods or Services, or both, shall immediately be increased to the correct price. The Customer shall be deemed to accept the price increase to the correct price unless the Customer serves written notice on the Customer terminating the Order within 7-days of receiving the Error Notice.
11.3 Whereby the Customer fails to comply with the Conditions Handy reserves the right to revoke any settlement discounts that may have been agreed between the parties from time to time.
11.4 Handy reserves the right to increase its prices at anytime in respect of an Order after it has been accepted by Handy due to:
11.4.1 any request by the Customer to change the Order after it has been accepted by Handy; or
11.4.2 any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give Handy adequate or accurate information or instructions in respect of the Goods or Services.
11.5 In respect of Goods and Services, Handy shall invoice the Customer on or at any time after completion of delivery.
11.6 The Customer shall pay each invoice submitted by Handy:
11.6.1 within the payment period set out in Handy’s acceptance of the Order, or as may otherwise be agreed by Handy or otherwise set out on Handy’s invoice; and
11.6.2 in full and in cleared funds to a bank account nominated in writing by Handy, and
time for payment shall be of the essence of the Contract.
11.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Handy to the Customer, the Customer shall, on receipt of a valid VAT invoice from Handy, pay to Handy such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11.8 If the Customer fails to make a payment due to Handy under the Contract by the due date, then, without limiting Handy's remedies under clause 15 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 11.8 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
11.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Handy.
12.2 Handy grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
12.3 The Customer grants Handy a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Handy for the term of the Contract for the purpose of providing the Services to the Customer.
13. CONFIDENTIALITY
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party's confidential information:
13.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
13.4 This clause 13 shall survive termination of the Contract.
14. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
14.3.1 death or personal injury caused by negligence;
14.3.2 fraud or fraudulent misrepresentation; and
14.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.4 Subject to clause 14.3, Handy's total liability to the Customer shall not exceed:
14.4.1 in the case of Goods, one hundred and fifty per cent (150%) of the price for the Goods in the Order in respect of which the liability occurred; or
14.4.2 in the case of Services, one hundred and fifty per cent (150%) of the price for the Services in respect of which the liability occurred.
14.5 This clause 14.5 sets out specific heads of excluded loss:
14.5.1 Subject to clause 14.3, the types of loss listed in clause 14.5.2 are wholly excluded by the parties.
14.5.2 The following types of loss are wholly excluded:
14.5.2.1 loss of profits;
14.5.2.2 loss of sales or business;
14.5.2.3 loss of agreements or contracts;
14.5.2.4 loss of anticipated savings;
14.5.2.5 loss of use or corruption of software, data or information;
14.5.2.6 loss of or damage to goodwill; and
14.5.2.7 indirect or consequential loss.
14.6 Handy has given commitments as to compliance of the Goods and Services with relevant specifications in clause 6 and clause 8. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.7 Unless the Customer notifies Handy that it intends to make a claim in respect of an event within the notice period, Handy shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.8 This clause 14 shall survive termination of the Contract.
15. TERMINATION
15.1 Without affecting any other right or remedy available to it, Handy may terminate the Contract with immediate effect by giving written notice to the Customer if:
15.1.1 the Customer commits a breach of the Contract and such breach is not remediable;
15.1.2 the Customer commits a breach of the Contract which is not remedied within 30-days of receiving written notice of such breach;
15.1.3 the Customer has failed to pay any amount due under the Contract on the due date;
15.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled;
15.1.5 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.1.6 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Handy reasonably believes that to be the case;
15.1.7 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.1.8 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
15.1.9 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
15.1.10 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
15.1.11 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.1.12 has a resolution passed for its winding up;
15.1.13 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
15.1.14 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
15.1.15 has a freezing order made against it;
15.1.16 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
15.1.17 is subject to any events or circumstances analogous to those in clauses 15.1.5 to 15.1.16 in any jurisdiction; or
15.1.18 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 15.1.5 to 15.1.17 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
15.2 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle Handy to terminate the Contract under this clause 15, it shall immediately notify Handy in writing.
15.3 Without affecting any other right or remedy available to it, Handy may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Handy if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.1.5 to clause 15.1.17, or clause 15.1.18 applies.
16. CONSEQUENCES OF TERMINATION
16.1 On termination of the Contract:
16.1.1 the Customer shall immediately pay to Handy all of Handy's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Handy shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.1.2 the Customer shall return any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then Handy may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
17. FORCE MAJEURE
17.1 Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (such as a national or local lockdown, pandemic and/or epidemic) (a “Force Majeure Event”).
18. GENERAL
18.1 Assignment and other dealings
18.1.1 Handy may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
18.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Handy.
18.2 Notices.
18.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
18.2.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
18.2.1.2 sent by fax to its main fax number or sent by email to the address specified in the Order, provided a confirmatory copy is sent by first class post.
18.2.2 Any notice or communication shall be deemed to have been received:
18.2.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
18.2.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
18.2.2.3 if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 18.2.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
18.2.3 This clause 18.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 18.3 shall not affect the validity and enforceability of the rest of the Contract.
18.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.6 Entire agreement.
18.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
18.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
18.7 Third party rights.
18.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
18.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
