THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 8.
- Interpretation1.1 Definitions. In these Conditions, the following definitions apply:
Act of Insolvency:
(a) the taking of any step in connection with any voluntary arrangement or any other compromise or arrangement for the benefit of any creditors of the Customer; or
(b) the making of an application for an administration order or the making of an administration order in relation to the Customer; or
(c) the giving of any notice of intention to appoint an administrator, or the filing at court of the prescribed documents in connection with the appointment of an administrator, or the appointment of an administrator, in any case in relation to the Customer; or
(d) the appointment of a receiver or manager or an administrative receiver in relation to any property or income of the Customer; or
(e) the commencement of a voluntary winding-up in respect of the Customer, except a winding-up for the purpose of amalgamation or reconstruction of a solvent company in respect of which a statutory declaration of solvency has been filed with the Registrar of Companies; or
(f) the making of a petition for a winding-up order or a winding-up order in respect of the Customer; or
(g) the striking-off of the Customer from the Register of Companies or the making of an application for the Customer to be struck-off; or
(h) the Customer otherwise ceasing to exist; or
(i) the presentation of a petition for a bankruptcy order or the making of a bankruptcy order against the Customer.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Husky: Husky International Limited (company number 07037625), Husky Refrigerators (UK) Limited (company number 06753148) or Husky Retail Limited (company number 06753195) as the case may be.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between Husky and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Credit Facility: a credit facility granted to the Customer in writing by Husky for the purposes of ordering goods.
Customer: the person or firm who purchases the Goods from Husky.
Goods: the goods (or any part of them) set out in the Order.
Identification: a form of identification being a passport, a photocard driving licence bearing a holographic mark, or other form of identification bearing the holder’s photograph, date of birth and the Proof of Age Standards Scheme hologram (or the mark of a similarly accredited scheme).
Order: the Customer’s order for the Goods.
2. Basis of Contract
2.1 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 trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when:
(a) in the case of the Order being placed over the telephone, when a Husky representative confirms completion of the Order;
(b) in the case of the Order being placed via Husky’s website, when the order confirmation screen is displayed;
(c) when the Goods are dispatched,
at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Husky which is not set out in the Contract (with the exception of any warranty given by Husky in accordance with and subject to clause 9)
2.5 Any samples, drawings, descriptive matter, or advertising produced by Husky and any descriptions or illustrations contained in Husky’s catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
3. Delivery and Installation
3.1 Husky shall deliver the goods to the address specified by the Customer at the time the order is placed, or such other place as may be agreed between the parties prior to delivery (Delivery Location).
3.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3.3 The Customer shall be required to provide a signature to Husky’s nominated courier at the time of delivery. Subject to clause 3.4, by signing for the Goods, the Customer is deemed to accept the quality, state and condition of the Goods at the time of delivery.
3.4 In the event that Goods are not inspected at the time of delivery, the Customer must inform Husky of any damage or patent defect relating to the Goods within 24 hours of completion of delivery.
3.5 Any dates quoted for delivery of the Goods are only estimates. Time shall not be of the essence in relation to delivery of the Goods.
3.6 If Husky 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. Husky shall have no liability for 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 Husky with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.7 If the Customer fails to take delivery of the Goods, except where such failure or delay is caused by a Force Majeure Event or Husky’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day after the day on which Husky’s nominated courier attempted to deliver the Goods;
(b) Husky shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance); and
(c) the Customer shall be liable for any costs and expenses incurred in respect of further attempts to complete physical delivery of the Goods.
3.8 It shall be the Customer’s responsibility to ensure that all necessary electrical installations have been completed prior to the installation of the Goods at delivery. In the event that such electrical installations are incomplete such that a return visit by Husky is required to complete installation of the Goods, Husky reserves the right to charge a fee of £350.00 plus VAT.
4. Title and risk
4.1 The risk in the Goods shall pass to the Customer on completion of delivery.
4.2 Title to the Goods shall pass to the Customer when Husky receives payment in full (in cash or cleared funds) for the Goods, and any other goods that Husky has supplied to the Customer.
4.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) not remove, deface or obscure any identifying mark on or relating to the Goods;
(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(c) notify Husky immediately if it becomes subject to an Act of Insolvency; and
(d) give Husky such information relating to the Goods as Husky may require from time to time.
4.4 If before title to the Goods passes to the Customer the Customer becomes subject to an Act of Insolvency, then, without limiting any other right or remedy Husky may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Husky may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) 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.
5. Price and Payment
5.1 The price of the Goods shall be the price:
(a) as set out in Husky’s published price list in force as at the date of delivery; or
(b) as otherwise agreed by Husky.
5.2 Husky may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Husky’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Husky adequate or accurate information or instructions.
5.3 Unless otherwise confirmed in writing by Husky, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods.
5.4 Except where otherwise stated, the price of the Goods is exclusive of amounts in respect of value added tax (VAT).
5.5 Where the Customer purchases Goods using a Credit Facility:
(a) Husky may invoice the Customer for the Goods on or at any time after the completion of delivery; and
(b) the Customer shall pay the invoice in full and in cleared funds within 14 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Husky. Time of payment is of the essence.
5.6 In the event that the Customer fails to pay an invoice by the due date, Husky shall be entitled to interest at the rate of 3% above the base rate of the Bank of England, accruing daily from the date following the due date for payment until the date on which the invoice is paid in full.
5.7 In the event that a cheque payment is not honoured by the Customer’s bank, Husky reserves the right to charge a fee of £25.00.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Husky may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Husky to the Customer.
6. Supply of Alcohol
It is against the law to sell alcohol to persons under the age of 18 in the UK. By placing the Order, the Customer confirms that he/she is at least 18 years old. In the event that a representative of Husky’s nominated courier has any doubt as to the age of the person taking delivery of Goods which involve the supply of alcohol, that person will be require to present a valid form of Identification. If such Identification is not provided, the alcohol element of the Order will be retained by the courier.
7. Cancellation, Termination and Suspension
7.1 If the Customer cancels the Order, Husky reserves the right to charge a cancellation fee in a sum equal to 25% of the total value of the Order to cover the costs of transportation, administration, testing and repackaging.
7.2 If the Customer becomes subject to an Act of Insolvency Husky may terminate the Contract with immediate effect by giving written notice to the Customer.
7.3 Without limiting its other rights or remedies, Husky may suspend provision of the Goods under the Contract or any other contract between the Customer and Husky if the Customer becomes subject to an Act of Insolvency, or Husky reasonably believes that the Customer is about to become subject to an Act of Insolvency, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
7.4 On termination of the Contract for any reason the Customer shall immediately pay to Husky all of Husky’s outstanding unpaid invoices and interest.
7.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
7.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect. .
8. Limitation of Liability
8.1 Nothing in these Conditions shall limit or exclude Husky’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
8.2 Subject to clause 8.1:
(a) Husky shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Husky’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
8.3 The terms implied by section 13 to section 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9. Warranty
9.1 No warranty is given by Husky in respect of the Goods unless otherwise agreed by Husky.
9.2 Any warranty given by Husky shall be subject to the following conditions:
(a) the Goods must be used under normal operating conditions and according to the instructions as indicated within the product manual provided by Husky;
(b) routine servicing or repair of the Goods must be undertaken by an appropriately qualified engineer;
(c) Goods manufactured for personal use must not be used for commercial or industrial purposes;
(d) the Customer must retain proof of purchase in the event that the Goods need to be returned.
9.3 Any warranty given by Husky shall be invalidated in the following circumstances:
(a) failure by the Customer to maintain, locate or install the Goods in accordance with Husky’s recommendations;
(b) neglect, misuse or modification of the Goods in any manner whatsoever by the Customer;
(c) replacement of any parts or components of the Goods with those of a type not specified by Husky;
(d) failure by the Customer to comply with Husky’s instructions in relation to the Waste Electrical and Electronics Equipment Directive (2002/96/EC) as amended from time to time.
9.4 Any warranty given by Husky shall not extend to matters and/or parts which are beyond the control of Husky, including (but not limited to):
(a) night blinds;
(b) electrical cabling between the Goods and the mains electricity supply;
(c) light bulbs, light tubes and LED lights;
(d) vandalism/physical damage to the Goods or parts thereof;
(e) rusting of the Goods;
(f) condensation pump;
(g) shelving;
(h) gable end wall (glass or mirror); or
(i) power failures.
9.5 In the event that an engineer attends the Customer’s premises for the purposes of inspecting the Goods for a potential claim under a warranty, Husky reserves the right to charge a fee to the Customer in certain circumstances, including (but not limited to):
(a) no fault being found with the Goods;
(b) general misuse/incorrect siting of the Goods;
(c) failure to follow Husky’s user guidelines and maintenance in accordance with Husky’s recommendations;
(d) replacement of light bulbs, light tubes and LED lights;
(e) condenser cleaning;
(f) blocked drainage systems;
(g) incorrect power sourcing;
(h) modification to or repairs of the Goods being undertaken by anyone other than an appropriately qualified engineer;
(i) damage to the Goods resulting from accident, misuse or neglect; or
(j) the Customer moving or relocating the Goods.
9.6 Any warranty given by Husky shall be personal to the Customer and the Customer shall not be entitled to assign or transfer the rights under such warranty without the prior written approval of Husky.
10. Consumers
The terms of this clause shall apply solely to a Customer who is a consumer (Consumer)
10.1 Right to cancel
(a) Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134), a Consumer is entitled to cancel an order placed via Husky’s website or an order concluded by telephone within 14 days following the date on which the Consumer takes delivery of the Goods in accordance with clause 3.
(b) Husky will give, or make available to, a Consumer their Cancellation Instructions and Cancellation Form prior to the completion of an order. A copy of the Cancellation Instructions and Cancellation Form can be found at www.husky-lifestyle.co.uk.
(c) Any Goods returned in accordance with this clause must be returned in an unused state and in their original packaging.
10.2 The statutory implied terms excluded by clause 8.3 above shall not be excluded from any contract made between Husky and a Consumer.
10.3 Clause 7.1 shall not apply to Consumers exercising their right to cancel under clause 10.1. .
11. UK WEEE Regulations
As part of the WEEE Regulations, Husky passes on the responsibility for all Goods sold to B2B customers when they reach end-of-life. The end user must deal with the WEEE in accordance with the WEEE Regulations in relation to the treatment, recycling & recovery and environmentally sound disposal of WEEE.
12. Force Majeure
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, including (without limitation) acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13. General
13.1 Assignment and other dealings.
(a) Husky may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Husky.
13.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or to a Consumer’s residential address or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3 Severance.
(a) 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 shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Husky.
13.7 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.8 Jurisdiction. Each party irrevocably agrees that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of a non-UK Customer to take proceedings against Husky in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
03.16
