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Conditions of Sale

HEATHCOAT FABRICS LIMITED

Westexe, Tiverton, EX16 5LL UK

 

CONDITIONS OF SALE

1.      INTERPRETATION

1.1    In these Conditions:

BUYER’ means the person whose order for the goods is accepted by the Seller or, where appropriate, the person who accepts a quotation of the Seller for the sale of the Goods.

‘GOODS’ means the goods (including any parts of them) specified in the Buyer’s order.

‘SELLER’ means Heathcoat Fabrics Limited (registered in England under number 00450787).

CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Seller.

‘CONTRACT means the contract for the purchase and sale of the Goods.

‘WRITING’ includes facsimile transmission, electronic mail and comparable means of communication.

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

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

2.      BASIS OF THE SALE

2.1    The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of the Buyer which is accepted by the Seller, or, where appropriate, any written quotation of the Seller which is accepted by the Buyer, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made, or, where appropriate, any such quotation is accepted or purported to be accepted.

2.2    No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Seller and the Buyer.

2.3    The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

2.4    Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

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

2.6    These Conditions shall not apply where the Buyer “deals as a consumer” as provided by section 12 of the Unfair Contract Terms Act 1977.

2.7    The application of the Uniform Laws on International Sales shall be excluded.

3.      ORDERS AND SPECIFICATIONS

3.1    No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative. An order may be made orally by the Buyer, but such an order must be confirmed in Writing.

3.2    The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable product specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3    The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).

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

3.5    The Seller reserves the right to make any changes in the specification of the Goods (including Goods that are to be supplied to the Seller’s specification) which are required to conform with any applicable safety or other statutory requirements and which do not materially affect their quality or performance.

3.6    No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4.      PRICE OF THE GOODS

4.1    All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer. Subject to Clause 4.2, the price of the Goods shall be the Seller’s quoted price, specified on the Acknowledgment of Order form to which these Conditions are annexed.

4.2    The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of taxes, duties or other levies, significant increase in the costs of any goods (including dye stuffs), materials, carriage, overheads or other costs), any change in delivery dates requested by the Buyer, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3    Except as otherwise stated under the terms of any quotation (where appropriate) or in any price list of the Seller, and unless otherwise specified by the Seller in Writing on its Acknowledgment of Order form or as agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

4.4    Unless otherwise specified, the price is exclusive of any applicable value added tax and any other tax or duties payable by the Buyer, which the Buyer shall be additionally liable to pay to the Seller.

5.      TERMS OF PAYMENT

5.1    Subject to any special terms agreed in Writing between the Buyer and Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2    Notwithstanding any right contained in Clause 5.1, the Seller reserves the right at any time to serve notice on the Buyer requiring payment to be made immediately. The Buyer shall thereupon immediately make payment to the Seller.

5.3    Except as otherwise specified by the Seller in Writing on the Acknowledgment of Order form the Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) not later than twenty days after the last day of the calendar month in which the Seller’s invoice was raised, notwithstanding that delivery may not have taken place and the property in the Goods may not have passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.4    If the Buyer commits any default in making payment under Clauses 4 and 5 of these Conditions or under the terms of any other contract between the Buyer and the Seller then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.4.1    cancel the Contract, stop any goods in transit or suspend all further deliveries to the Buyer under this and any other contract between the Buyer and the Seller until payment is made or any other default is remedied to the satisfaction of the Seller without any liability of the Seller to the Buyer, but the Contract shall not be thereby determined nor shall the Buyer be entitled to determine the same; and

5.4.2    appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

5.4.3    charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of two per cent per annum above National Westminster Bank PLC Bank base rate from time to time, to run from the due date for payment thereof until receipt by the Seller of the full amount (a part of a month being treated as a full month for the purpose of calculating interest); and

5.4.4    exercise the rights of an unpaid seller as set out in Part V of the Sale of Goods Act 1979.

5.5    If in the opinion of the Seller the credit-worthiness of the Buyer shall have deteriorated prior to delivery, the Seller may require full or partial payment of the price prior to delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller.

5.6    The Buyer shall not have any right of set-off (whether contractual, statutory or otherwise) of sums owing under the Contract against sums owing by the Seller to the Buyer on any other account.

6.      DELIVERY

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

6.2    Any dates quoted for delivery of the Goods are approximate only and not of any contractual effect and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

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

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

6.5    If the Buyer refuses or fails to take delivery of the Goods tendered in accordance with the Contract or fails to give the Seller adequate delivery instructions at the time stated for delivery or fails to take any action necessary on its part for delivery and/or shipment of the Goods (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.5.1    store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

6.5.2    terminate the Contract with immediate effect, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses), recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure and account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.6    6.6.1    The Buyer shall inspect the Goods immediately on arrival thereof and shall within seven days from such inspection give notice in Writing to the Seller of any matter or thing by reason whereof it alleges the Goods are not in accordance with the Contract. If the Buyer shall fail to give such notice the Goods shall be deemed to be in all respects in accordance with the Contract and the Buyer shall be bound to accept and pay for the same accordingly.

6.6.2    Where it is alleged the Goods are not in accordance with the Contract the Seller or its agents shall be given a reasonable opportunity to inspect the Goods. If after inspection the Seller agrees to the return of any Goods (and any such agreement shall be without prejudice to their rights under these Conditions) the Goods on being received by the Seller must be in the same condition that they were on inspection.

6.6.3    If the Seller accepts the return of the Goods and allows the Buyer credit in respect of the same the Seller shall be under no further liability. In no circumstances shall the Seller be liable for any sum in excess of the purchase price of the Goods plus any freight and insurance charges paid by the Buyer. The Seller shall in no circumstances be liable for any consequential loss.

6.6.4    The Seller shall be under no liability in respect of any Goods no longer in their original state which have been improperly handled or stored or in respect of Goods which have been altered or processed in any way, unless the Seller is satisfied in all respect with such alterations or processing.

6.6.5    The Buyer shall not cancel the remainder of the Contract, or refuse to accept delivery under it by reason of any alleged breach of Contract in respect of any Goods delivered.

6.7    Nothing in Clause 6.6 and Clauses 7.2 to 7.6 inclusive shall affect the Conditions as to risk or delivery set out herein.

7.      RISK AND PROPERTY

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

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

7.1.2    in the case of Goods to be delivered in Scotland, England or Wales otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods; or

7.1.3    in the case of Goods to be delivered other than in Scotland, England or Wales, in accordance with the relevant provisions of lncoterms (as defined in Clause 11.1).

7.2    Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the Goods shall remain the sole and absolute property of the Seller as legal and equitable owner until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3    Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods solely as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

7.4    Subject to the terms hereof the Buyer is not permitted by the Seller to process the said Goods and/or incorporate them in or with any other product or products until payment (in cleared funds) for the Goods has been made by the Buyer to the Seller.

7.5    The Buyer shall be at liberty and may in the ordinary course of its business sell and deliver the Goods or any product produced by the Buyer incorporating any part of the Goods to any third party as Seller’s bailee and in a fiduciary capacity and provided that the entire proceeds of sale are held in trust for the Seller and are not mingled with any other monies and shall at all times be identifiable as the Seller’s monies. The Buyer agrees immediately upon being so requested by the Seller to assign to the Seller all rights and claims which the Buyer may have against its customers arising from such sales until payment is made in full to the Seller as aforesaid.

7.6    The Seller reserves the immediate right of repossession of any Goods to which it has retained title as aforesaid and thereafter to re-sell the same and to refund to the Buyer any amount recovered in excess of such unpaid sums and costs and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller’s servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the Contract for any reason and is without prejudice to any accrued rights of the Seller thereunder or otherwise.

7.7    The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but If the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8.      THIRD PARTY RIGHTS

8.1    The Buyer shall indemnify the Seller against any and all liabilities claims and costs incurred by or made against the Seller as a direct or indirect result of the carrying out of any work required to be done to the Goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party.

8.2    The Seller shall have no liability to the Buyer in the event of the Goods infringing or being alleged to infringe the rights of any third party. In the event that the Goods are or may be the subject of third party rights the Seller shall be obliged to transfer to the Buyer only such title as the Seller may have.

8.3    The Buyer shall notify the Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Seller shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance in connection therewith as the Seller may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine.

8.4    The Goods are supplied under this Contract on condition that any registered trade marks used in connection with them which are the property of another registered proprietor shall not be used in any manner not approved by the registered proprietor or in breach of any conditions attached to their use nor be used in connection with Goods after they have been processed or treated in any manner not approved by the registered proprietor. If work done by the Seller in accordance with any specification or design provided or ordered by the Buyer involves the infringement by the Seller of any registered design or patent the Buyer shall indemnify the Seller in respect of any damages penalties costs or expenses for which the Seller may become liable.

9.      LIABILITY

9.1    The Seller shall not be liable to the Buyer:

9.1.1    for shortages in quantity delivered unless the Buyer notifies the Seller of any claim for short delivery within 7 days of receipt of the Goods; or the scheduled date of delivery whichever shall be the earlier;

9.1.2    for defects in the Goods caused by fair wear and tear, abnormal conditions of storage or abnormal working conditions, wilful damage, negligence, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s prior written approval;

9.1.3    for other defects in the Goods unless notified to the Seller within 1 month of receipt of the Goods by the Buyer or where the defect would not be apparent on reasonable inspection within 12 months of delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

9.2    9.2.1    Where liability is accepted by the Seller in Writing the Seller’s only obligation shall be at its option to make good any shortage or non-delivery and/or as appropriate to replace or repair any of the Goods (or the part in question) found to be damaged or defective and/or to refund the cost of any such Goods (or part) to the Buyer, but the Seller shall have no further liability to the Buyer.

9.2.2    The Seller’s aggregate liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged or undelivered Goods which gave rise to such liability as determined by the net price invoiced to the Buyer in respect of any occurrence or series of occurrences.

9.3    Except as expressly provided in these Conditions all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods are hereby excluded to the fullest extent permitted by law and the Seller shall be under no liability to the Buyer for any loss damage or injury whether direct or indirect, costs, expenses or other claims (including without prejudice to the generality of the foregoing consequential loss or damage, whether for loss of profit or otherwise) resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller it employees or agents SAVE THAT the Seller shall accept liability for death or personal injury caused by the negligence of the Seller.

9.4    The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

9.4.1    Act of God, explosion, flood, storm, fire or accident;

9.4.2    war or threat of war, hostilities (whether war has been declared or not), sabotage, insurrection, civil disturbance, requisition, insurrection (whether military or civil), usurped power or national emergency;

9.4.3   acts, restrictions, rules, orders, requisitions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental department, parliamentary or local or other duly constituted authority;

9.4.4    import or export regulations or embargoes;

9.4.5    strikes, lock-outs or other industrial actions, trade disputes or labour disturbance (whether involving employees of the Seller or of a third party);

9.4.6    difficulties in obtaining raw materials, labour, fuel, transport, parts or machinery;

9.4.7    power failure or breakdown in plant or machinery.

If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.

9.5    If these Conditions or any part of these Conditions is or are rendered void by any legislation or law to which it is subject, it shall be void to that extent but no further. If these Conditions or any part of these Conditions is or are rendered unenforceable by the legislation or laws to which it is subject, it shall be unenforceable to that extent and no further.

10.    INSOLVENCY OF BUYER AND DEFAULT

10.1 This Clause applies in the following circumstances:

10.1.1 the Buyer is in breach of any of the terms hereof or of any other obligation owed to the Seller and (if such breach is remediable) fails to remedy such breach within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or

10.1.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Buyer; or

10.1.3 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an Administration Order or (being an individual or firm) becomes bankrupt;

10.1.4 the Buyer goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the Buyer under this Agreement);

10.1.5 the Buyer suffers any distress or execution to be levied on its assets or commits any act of bankruptcy;

10.1.6 anything analogous to any of the foregoing under the law of any jurisdiction in relation to that other party;

10.1.7 the Buyer ceases, or threatens to cease, to carry on business; or

10.1.8 the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notify the Buyer accordingly.

10.2 If this Clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled without any liability to the Buyer to stop any of the Goods in transit and/or suspend further deliveries and/or by notice in writing to the Buyer determine the Contract and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

11.    EXPORT TERMS

11.1 In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, (for example, but without prejudice to the generality of the foregoing, where goods are sold CIF and FOB) but if there is any conflict between the provisions of lncoterms and these Conditions, the latter shall prevail.

11.2  Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.

11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

11.4  Unless otherwise agreed in Writing between the Buyer and the Seller or unless otherwise specified in Writing by the Seller in the Acknowledgment of Order form, the Goods shall be delivered FOB the air or sea port of shipment. The Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

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

11.6  Unless otherwise agreed in Writing, payment of all amounts due to the Seller shall be made as specified in Writing by the Seller in the Acknowledgment of Order form.

11.7  Section 32(2) of the Sale of Goods Act 1979 shall not apply.

12.    GENERAL

12.1  Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

12.2  Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class post, facsimile transmission or electronic transmission to the party concerned at its last known address. Notices sent by first class post shall be deemed to have been given seven days after despatch and notices sent by facsimile transmission or electronic transmission shall be deemed to have been given on the date of despatch.

12.3  The Seller is a member of the group of companies whose holding company is John Heathcoat & Co (Holdings) Limited and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other members of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.

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

12.5  No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

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

12.7  Any dispute or difference of any kind whatsoever arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration in London by a single arbitrator appointed by agreement or (in default) nominated either party:

(i)      where the Buyer is resident or incorporated under the laws of England and Wales or Scotland under the Arbitration Rules of the Chartered Institute of Arbitrators in accordance with such Rules: or

(ii)     otherwise, under the International Arbitration Rules of the London Court of International Arbitration in accordance with such Rules.

12.8  The construction, validity and performance of the Contract shall be governed by the laws of England.

12.9 Subject to Clause 12.7 hereof, the parties to the Contract irrevocably agree that the courts of England are to have jurisdiction to settle any claim or dispute which may arise out of or in connection with the Contract or these Conditions.

13.    USE OF THE WEBSITE

13.1    For the purposes of this Clause 13, unless the context otherwise requires, the following expressions have the following meanings:

“Account”

means collectively the personal information and access credentials used by Users to access the Website;

“Content”

means any text, graphics, logos, icons, images, and any other form of information capable of being stored in a computer that appears on or forms part of the Website;

“User / Users”

means any third party that accesses the Website that is not employed by the Seller and acting in the course of their employment; and

“Website”

means the website on which these Conditions appear (http://heathcoatonline.com/) and any sub-domains of that website unless expressly excluded by their own terms and conditions.

13.2   Access to the Website

13.2.1    In order to use the Website, Users may create an Account submit certain personal details or use the Website as a guest. By accepting these Conditions the User represents and warrants that:

13.2.1.1  any information that is submitted is accurate and truthful;

13.2.1.2  all such information will be kept accurate and up-to-date; and

13.2.1.3  the means by which they identify themselves does not violate any part of these Conditions or any applicable laws.

13.3   Use of the Website

13.3.1 Users’ rights to use the Website are non-exclusive, non-transferrable and fully revocable at the Seller’s discretion.

13.4   Intellectual Property

13.4.1 All Content included on the Website including, but not limited to, text, graphics, logos, icons, images, page layout and underlying code is the property of the Seller. By accepting these Conditions the User acknowledges that such material is protected by applicable United Kingdom and international intellectual property and other laws.

13.4.2 Users may not reproduce, copy, distribute, store or in any other fashion re-use material from the Website unless otherwise indicated on the Website or unless given express written permission to do so by the Seller.

13.5   Links to Other Websites

This Website may provide links to other websites. Unless expressly stated, such websites are not under the control of the Seller or that of our affiliates. The Seller assumes no responsibility for the content of the websites and disclaims liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another website on this Website does not imply any endorsement of that website or of those in control of it.

13.6   Links to this Website

Users wishing to place a link to this Website on another website may do so only to our home page in the absence of any prior permission. Deep linking (i.e. links to specific pages within the Website) requires the express permission of the Seller.

13.7    Disclaimer of Warranties

13.7.1       The Seller makes no warranty or representation that the Website will meet Users’ requirements.

13.7.2       The Seller shall use its best and reasonable endeavours to ensure that all information provided on the Website is accurate and up to date, however the Seller makes no warranty or representation that this will always be the case.

13.8    Availability of the Website

13.8.1       The Website is provided “as is” and on an “as available” basis. The Seller gives no warranty that the Website will be free of defects and / or faults. To the maximum extent permitted by law the Seller provides no warranties (express or implied) of fitness for a particular purpose, accuracy of information or compatibility.

13.8.2       The Seller accepts no liability for any disruption or non-availability of the Website resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and censorship.

13.9    Limitation of Liability

13.9.1       To the maximum extent permitted by law, the Seller accepts no liability for any direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages arising from the use of the Website or any information contained therein.

13.10     Termination of User’s Account

13.10.1     The Seller reserves the right to terminate a User’s Account at any time for the following reasons:

13.10.1.1  The User has committed a material breach of these Conditions, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the User fails to remedy the breach within 14 days after a written notice to do so;

13.10.1.2  The User has indicated, expressly or impliedly, that they do not intend to or are unable to comply with these Conditions;

13.10.1.3  The Seller is required to do so by law;

13.10.1.4  It has become, in the opinion of the Seller, its affiliates or advisers, no longer commercially viable to continue providing the Website.