P. A. Hilton Ltd - Terms and conditions of sale
The Customer's attention is in particular drawn to Conditions 13.8, 14.2, 14.4 and 21.
1.1 In these Conditions, unless the context otherwise requires, the following words have the following meanings:
Act of Insolvency
Any event whereby a party becomes insolvent or unable to pay its debts when payable or becomes the subject of a voluntary or involuntary winding up petition, or becomes bankrupt, or makes an assignment for the benefit of creditors or is dissolved or liquidated.
The standard terms and conditions of sale set out in this document
Information marked “Confidential” or otherwise disclosed on a confidential basis by, or on behalf of, one party to a Contract to the other party in connection with the performance of a Contract.
Any contract between P.A. Hilton Ltd and the Customer for the sale and purchase of Goods and/or Services.
The person, firm or company who orders or purchases Goods and/or Services from P.A. Hilton Ltd.
Any goods agreed in the Contract to be supplied to the Customer by P.A. Hilton Ltd (including any part or parts of them).
Any services agreed in the Contract to be supplied to the Customer by P.A. Hilton Ltd (including any part of them).
P.A. Hilton Ltd
P.A. Hilton Limited, whose company number is 743785 and whose registered office is at Horsebridge Mill, King's Somborne, Stockbridge, Hampshire SO20 6PX.
2. Application of terms
2.1 Subject to any variation under Condition 2.3, the Contract for any Goods and/or Services will be governed by these Conditions to the exclusion of all other terms and conditions (including any terms or conditions that the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order or other document will form any part of any Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all sales of Goods and / or Services by P.A. Hilton Ltd and no variation to these Conditions or representation about the Goods and / or Services will have any effect unless expressly agreed in writing and signed by an authorised representative of P.A. Hilton Ltd.
2.4 Each order or acceptance by the Customer of a quotation for Goods and / or Services from P.A. Hilton Ltd will be deemed to be an offer by the Customer to buy such Goods and / or Services subject to these Conditions
2.5 Subject to Condition 2.6, an order for Goods and / or Services will only be deemed accepted by P.A. Hilton Ltd and a Contract formed on the date when:
2.5.1 a written acceptance of such order is issued by P.A. Hilton Ltd; or, if earlier,
2.5.2 P.A. Hilton Ltd delivers the Goods or commences the provision of the Services to the Customer in accordance with such order.
2.6 No order for the supply of any Goods and/or Services outside of the United Kingdom shall be binding on P.A.Hilton Ltd until the terms for the provision by the Customer of an operable Letter of Credit or other export payment terms are agreed in writing by P.A. Hilton Ltd in accordance with Condition 10 before the expiry date of the corresponding quotation from P.A. Hilton Ltd.
3. Quotations and orders
3.1 Any quotation from P.A. Hilton Ltd:
3.1.1 shall be considered as an invitation to treat only and shall not by itself be considered as an offer capable of acceptance; and
3.1.2 is given on the basis that no Contract will come into existence until the Customer has placed an order and P.A. Hilton Ltd accepts or performs such order; and
3.1.3 may be withdrawn or amended by P.A. Hilton Ltd at any time prior to the formation of a Contract; and
3.1.4 is only valid until the expiry date of any period of validity stated on the quotation (unless otherwise agreed by P.A. Hilton Ltd in writing) provided that P.A. Hilton Ltd has not previously withdrawn or amended it.
3.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documentation issued by P.A. Hilton Ltd will be subject to correction without any liability on the part of P.A. Hilton Ltd.
3.3 Any quotation from P.A. Hilton Ltd for the sale and supply of any Goods will state the Incoterm accordance with which such Goods are to be sold and supplied and the price of P.A. Hilton Ltd supplying training, installation and commissioning services in respect of such Goods. Each such quotation will also make it clear what the price is for the sale and supply of the Goods both with and without P.A. Hilton Ltd supplying such additional services.
3.4 The Customer will ensure that the terms of any order for Goods and/or Services and any applicable specifications are complete and accurate. It is the responsibility of the Customer:
3.4.1 prior to placing any order for Goods, to correctly notify P.A. Hilton Ltd of any changes it requires to the Incoterm specified by P.A. Hilton Ltd as applying to the sale and supply of those Goods and detailed in the corresponding quotation and P.A. Hilton Ltd will, upon receipt of any such notification and if it agrees with the requested change, issue a revised quotation to reflect the change; and
3.4.2 in placing any order for Goods, to confirm, or otherwise, in writing whether the Customer requires P.A. Hilton Ltd to supply training, installation and commissioning services in respect of the Goods;
and P.A. Hilton Ltd shall not be in any way responsible or liable for any failure by the Customer to do so nor shall any such failure in any way relieve the Customer of any of its obligations under the resulting Contract for the Goods if the incorrect or incomplete order is accepted by P.A. Hilton Ltd, nor shall any such failure in any way relieve the Customer of its indemnification obligations under Condition 21.
4.1 The quantity and description of Goods and / or Services to be supplied under the Contract for such Goods and /or Services will be as set out in the quotation forming the subject of an order from the Customer that is accepted by P.A. Hilton Ltd by written acknowledgement or by the performance of P.A. Hilton Ltd if earlier.
4.2 All samples, drawings descriptive matter, specification and advertising issued by P.A. Hilton Ltd and any descriptions or illustrations contained in P.A. Hilton Ltd's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. Aside from specifications expressly incorporated by reference into a quotation acknowledged by P.A. Hilton Ltd they will not form part of the Contract for any such Goods and/or Services.
4.3 Product images are for illustrative purposes only and may differ from the actual product.
5.1 All Goods will be sold and supplied in accordance with the Incoterm specified by P.A. Hilton Ltd as applying to the sale and supply of those Goods and detailed in the corresponding quotation. Such Incoterm shall:
5.1.1 have the meaning and effect set out in INCOTERMS 2010, as revised by any subsequent revision thereof published by the International Chamber of Commerce and effective at the date when the quotation was accepted by P.A. Hilton Ltd; and
5.1.2 impose on P.A. Hilton Ltd and the Customer as seller and buyer respectively the obligations therein stated, subject only to anything to the contrary provided in these Conditions. In the event of a conflict between these Conditions and Incoterms these Conditions shall prevail.
5.2 Unless otherwise agreed sales of Goods shall be on EXW terms.
6.1 Delivery of any Goods will take place in accordance with the agreed Incoterm. Where the sale is on EXW terms, or if no Incoterm is specified, delivery of the Goods shall be at the premises of P.A. Hilton Ltd or at the premises of their designated packers at any time after P.A. Hilton Ltd has notified the Customer that the Goods are ready for collection.
6.2 Any dates specified by P.A. Hilton Ltd for delivery of any Goods and / or supply of any Services are intended to be estimates only and time for the delivery of the Goods and / or supply of the Services will not be made of the essence by notice. Delivery of the Goods and / or supply of the Services will be within a reasonable time of any dates specified by P.A. Hilton Ltd.
6.3 Except as otherwise provided in these Conditions, P.A. Hilton Ltd will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of Goods and / or supply of Services (even if caused by breach of contract, negligence or other breach of duty on the part of P.A. Hilton Ltd), nor will any delay entitle the Customer to terminate or rescind the Contract for such Goods and / or Services.
6.4 P.A.Hilton Ltd may deliver Goods and / or supply Services by separate instalments. Each separate instalment will be:
6.4.1 invoiced and paid for in accordance with these Conditions; and
6.4.2 be a separate Contract and no cancellation or termination of any one Contract relation to an instalment will entitle the Customer to repudiate or terminate any other Contract or instalment.
7.1 The quantity of any consignment of Goods as recorded by P.A. Hilton Ltd in the consignment notice or other shipping document issued upon delivery will be conclusive evidence of the quantity received by the Customer on delivery.
7.2 P.A. Hilton Ltd will be discharged from all liability for the non delivery of any Goods or the failure to supply any Services (even if caused by breach of contract, negligence or other breach of duty of P.A. Hilton Ltd), unless the Customer gives written notice to P.A. Hilton Ltd of the non delivery or failure within 14 (fourteen) days of the date when the Goods would in the ordinary course of events have been delivered or the supply of Services was to have started.
7.3 Any liability of P.A. Hilton Ltd for breach of contract, negligence or other breach of duty for the non-delivery of any Goods or failure to supply any of the Services will be limited to:
7.3.1. supplying substitute Goods or services within a reasonable time; or, at the option of P.A. Hilton Ltd
7.3.2 issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods or Services.
7.4 If for any reason the Customer fails to take or accept delivery of any Goods when notified that they are ready for collection or delivery or P.A. Hilton Ltd is unable to make available for collection or deliver any Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations then upon notice from P.A. Hilton Ltd to the Customer:
7.4.1 risk in the Goods will pass to the Customer (including for loss or damage caused by P.A. Hilton Ltd's negligence);
7.4.2 the Goods will be deemed to have been delivered; and
7.4.3 P.A. Hilton Ltd may store the Goods until the Goods are physically received by the Customer or its representative, whereupon the Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance);
7.4.4 P.A. Hilton Ltd shall have a lien on the Goods for any costs arising after the deemed delivery
7.5 If for any reason the Customer fails to take or accept delivery of any Goods after 14 (fourteen) days have elapsed from the date notified for delivery then P.A. Hilton Ltd shall be entitled to sell or otherwise dispose of such goods. Any exercise of the right of sale or disposal shall be without prejudice to any claims that P.A. Hilton Ltd might have on the Seller.
8.1 Risk in the Goods passes to the Customer on delivery of the Goods in accordance with the Incoterm specified by P.A. Hilton Ltd as applying to the sale and supply of those Goods and detailed in the corresponding quotation.
8.2 Unless otherwise confirmed in writing by P.A. Hilton Ltd, ownership of any Goods will not pass to the Customer until P.A. Hilton Ltd has received in full without deduction cleared funds for all sums due to it in respect of:
8.2.1 the Goods; and
8.2.2 all other sums which are due to P.A. Hilton Ltd from the Customer on any account.
8.3 Until ownership of any Goods has passed to the Customer, the Customer will:
8.3.1 hold the Goods on a fiduciary basis as P.A. Hilton Ltd's bailee; and 8.3.2 store the Goods (at no cost to P.A. Hilton Ltd) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the property of P.A.Hilton Ltd; and
8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured on P.A. Hilton Ltd’s behalf for their full price against all risks to the reasonable satisfaction of P.A. Hilton Ltd and, on request, the Customer will produce the policy of insurance to P.A. Hilton Ltd; and
8.3.5 ensure that, if the Goods are or become affixed to any land or building, they will be capable of being removed without material injury to such land or building and take all necessary steps to prevent title to the Goods from passing to the landlord of such land or building; and
8.3.6 refrain from using the Goods without the further written agreement of P.A. Hilton Ltd; and
8.3.7 not to part with, hand over or part with possession of the Goods except in connection with a sale as permitted under Condition 8.4 below; and
8.3.8 prevent the Goods being subject to any lien, legal restraint, charge or security interest and refrain from doing anything that is inconsistent with the rights of P.A. Hilton Ltd as owners of the Goods.
8.4 The Customer will be entitle to resell such Goods provided that any such resale by the Customer will take place in its capacity as fiduciary agent (save that the Customer will not hold itself out as such) and bailee of P.A. Hilton Ltd (whether the Customer purports to sell on its own account or not) and the Customer will hold the entire proceeds of such resale on trust for P.A. Hilton Ltd, immediately pay all such proceeds into a separate bank account for such purposes, ensure that no such proceeds are mingled with any other monies or paid into an overdrawn bank account and ensure that all such proceeds are at all times identifiable as P.A. Hilton Ltd’s monies and P.A. Hilton Ltd will be entitled to call upon the Customer to assign all claims that the Customer may have against the purchaser(s) of the Goods.
8.5 Until ownership of any Goods has passed to the Customer, the Customer's right to possession of the Goods will terminate immediately if:
8.5.1 the Customer is the subject of an Act of Insolvency; or
8.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between P.A. Hilton Ltd, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or ceases to trade; or
8.5.3 the Customer encumbers or in any way charges any of the Goods.
9.1 Unless otherwise agreed in writing by P.A. Hilton Ltd, the price for any Goods and/ or Services will be the price set out in the quotation applicable to the Contract for the sale of such Goods or Services, which (in the case of any Goods) will reflect the Incoterm in accordance with which such Goods are to be sold and supplied, as also detailed in the corresponding quotation.
9.2 Unless otherwise stated the price stated in any quotation does not include Value Added Tax (VAT) or any other tax applicable to the sale and supply of any Goods and / or Services. Any VAT or other applicable tax, duty or import levy will be charged additionally to and / or (whether directly or indirectly paid) for the account of the Customer.
9.3 P.A. Hilton Ltd reserves the right by giving notice to the Customer at any time before the delivery or supply of Goods and/or Services, to increase the price of the Goods and/or Services to reflect:
9.3.1 any increase in the cost to P.A. Hilton Ltd that is due to any factor beyond its control (such as, without limitation, alteration of duties or significant increases in the costs of labour, materials or other costs of manufacture); and / or
9.3.2 any changes in delivery dates, quantities or the specifications for the Goods and/or Services that are requested by the Customer; and/or
9.3.3 any delay caused by any of the Customer’s instructions or its failure to give P.A. Hilton Ltd adequate information or instructions.
10.1 Unless other export payment terms are agreed in writing by P.A. Hilton Ltd, the payment due in respect of any order for the supply of Goods and / or Services to Customers outside the United Kingdom must be made by confirmed Letter of Credit and the Customer must establish and maintain in favour of P.A. Hilton Ltd an irrevocable Letter of Credit satisfactory to P.A. Hilton Ltd and confirmed by a major clearing bank in England in order to effect such payment.
10.2 Unless other payment terms are agreed the opening of a confirmed Letter of Credit by the Customer shall be a precondition to the obligation to perform such export Contract by P.A. Hilton Ltd. P.A. Hilton Ltd shall have no obligation to deliver Goods and / or supply Services unless and until the Letter of Credit has been opened and confirmed. If a Letter of Credit is not opened within any agreed timescale or, if no timescale is agreed, within a reasonable time P.A. Hilton Ltd may give notice terminating the Contract.
10.3 In relation to any payments to be made under any Contract other than by Letter of Credit or any other export payment terms agreed in writing by P.A. Hilton Ltd, the Customer will make each such payment in full and cleared funds within 30 (thirty) days of the date of P.A. Hilton Ltd’s corresponding invoice or such alternative timeframe as is agreed in writing by P.A. Hilton Ltd. Time for payment of any sums owed to P.A. Hilton Ltd under any Contract will be of the essence of that Contract.
10.4 All payments payable to P.A. Hilton Ltd under the Contract for any Goods and/or Services will become due in full immediately on its termination for whatever reason despite any other provision.
10.5 The Customer will make all payment under the Contract for any Goods and / or Services in full without deduction (whether by way of set-off, counterclaim, discount, abatement or otherwise), unless with the prior written agreement of P.A. Hilton Ltd
10.6 Unless otherwise agreed by P.A. Hilton Ltd all payments shall be made in pounds sterling.
10.7 If the Customer fails to pay P.A. Hilton Ltd any sum due pursuant to the Contract for any Goods and/or Services, the Customer will be liable to pay interest to P.A.Hilton Ltd on such sum from the due date for payment at the annual rate of 4% (four percent) above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made in cleared funds, whether before or after any judgement.
11.1 A party receiving Confidential Information shall:
11.1.1 keep such Confidential Information confidential and refrain from disclosing such Confidential Information to any third party. Provided that employees, subcontractors, auditors or other professional advisors with a need to see such Confidential Information ("Authorised Persons") and themselves subject to a duty of confidentiality shall not be considered as third parties for the purposes of this clause; and
11.1.2 use such confidential information solely for performance of its obligations under a Contract and not for any other purpose.
11.2 A party receiving Confidential Information further undertakes to the disclosing party:
11.2.1 it will not make or keep copies of, or otherwise reproduce, any document or part thereof comprised in the Confidential Information without the prior written consent of disclosing party.
11.2.2 it will ensure that any Confidential Information disclosed to it will at all times be under its control.
11.2.3 to procure that each of the Authorised Persons who has access to the Confidential Information comply with the terms of this Agreement in the same manner as the receiving party is bound hereby, with the receiving party remaining responsible for the actions and disclosures of such Authorised Persons.
11.2.4 that in the event that any unauthorised person obtains any part of Confidential Information it will provide with any necessary assistance to enable the disclosing party to restrain such use, publication or dissemination.
11.3 The undertakings set out in above shall not apply to any part of the Confidential Information:
11.3.1 that, at the time of disclosure, is generally known or available to the public other than as a consequence of breach by the receiving party of the Contract; or
11.3.2 that can be proved to have been known to the receiving party prior to its disclosure by the disclosing party; or
11.3.3 that is disclosed by a third party to the receiving party if such disclosure is not a breach of any obligation of that third party; or
11.3.4 that the disclosing party authorises in writing for release; or
11.3.5 that are ordered to be disclosed under the terms of a valid and effective order issued by a court of competent jurisdiction.
12. Intellectual Property
12.1 Nothing in this Contract shall operate to grant or transfer to the Customer any intellectual property rights. The Customer acknowledges that P.A. Hilton Ltd and / or its licensors will retain ownership of all intellectual property rights of whatsoever nature:
12.1.1 in the design or manufacture of any Goods or any accessories to or part of such Goods: and
12.1.2 in any Services or any goods, products or material made available or produced as part of any Services.
12.2 The Customer undertakes not to permit the reverse engineering of any Goods for the purpose of creating similar goods.
13.1 Where P.A. Hilton Ltd is not the manufacturer of the Goods, P.A. Hilton Ltd will endeavour to transfer to the Customer the benefit of any warranty or guarantee given to P.A. Hilton Ltd in respect of such Goods.
13.2 Except as otherwise provided in these Conditions, P.A. Hilton Ltd warrants that Goods will, for a period of 24 months from the date of their confirmed delivery:
13.2.1 conform to any written specifications for the Goods expressly incorporated by reference into a quotation provided by P.A Hilton Ltd forming the basis of the order from the Customer .
13.2.2 be free from defects in material and workmanship; and
13.2.3. be reasonably fit for any particular purposes for which the Goods are being bought if the Customer has previously made that purpose known to P.A. Hilton Ltd in writing and P.A. Hilton Ltd has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of P.A.Hilton Ltd.
13.3 P.A. Hilton Ltd warrants that (except as otherwise provided in these Conditions) Services will be conducted with reasonable skill and care. P.A. Hilton Ltd do not warrant that the Services will achieve any particular outcome.
13.4 P.A. Hilton Ltd will not be liable for a breach of any of the warranties in Conditions 13.2 or 13.3 unless:
13.4.1 the Customer gives written notice of the breach to P.A. Hilton Ltd within 14 (fourteen) days of the date when the Customer discovers or ought to have discovered the breach; and
13.4.2 P.A. Hilton Ltd is given a reasonable opportunity after receiving the notice:
(a) of examining the defective of faulty Goods; or
(b) of conducting an enquiry into the deficient provision of the services.
13.5. P.A. Hilton Ltd will not be liable for any defect or fault in the Goods:
13.5.1 if, after giving notice under Condition 13.4.1, the Customer makes any further use of the defective or faulty Goods in respect of which such notice was given; or
13.5.2 if the defect or fault arises because the Customer failed to follow P.A. Hilton Ltd’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the relevant Goods or (if there are none) good trade practice; or
13.5.3 if the Customer alters or repairs the defective or faulty Goods without the prior written consent of P.A. Hilton Ltd; or
13.5.4 if the defect or fault occurs in relation to any consumables or results from fair wear and tear, the wilful damage or negligence of the Customer or any of its employees, agents or sub-contractors or any abnormal working conditions of the Customer.
13.6 Subject to Conditions 13.4. and 13.5, if it is alleged that any Goods and/ or Services do not conform with any of the warranties in Condition 13.2 or 13.3, P.A. Hilton Ltd may at its option:
13.6.1 repair or replace such Goods (or the defective part);
13.6.2 re-supply the Services (or the defective part); or
13.6.3 refund the price of such Goods and / or Services at the pro rata Contract rate.
If P.A. Hilton Ltd so requests, the Customer will return to P.A. Hilton Ltd the Goods (or the part of such Goods which is defective) that have been replaced or for which a refund of the price has been given. In such an event the Customer shall arrange the delivery of such Goods to the premises of P.A. Hilton Ltd at its risk and expense and may thereafter seek reimbursement from P.A. Hilton Ltd of the costs thereof.
13.7 Once P.A. Hilton Ltd exercises any option under Condition 13.6 in respect of any alleged breach of any of the warranties in Conditions 13.2 and 13.3, it will have no further liability for any such breach. Any Goods replaced under Condition 13.6.1 or the subject of a price refund under Condition 13.6.3 will belong to P.A. Hilton Ltd and any repaired or replacement Goods will be warranted on the terms of this Condition 13 for the unexpired portion of the 24-month period.
13.8 THE ABOVE WARRANTIES ARE GIVEN BY P. A. HILTON LTD IN LIEU OF ANY OTHER WARRANTIES, CONDITIONS OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW, IN CONTRACT, CIVIL LIABILITY OR IN TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY. THE REMEDIES DETAILED IN CONDITIONS 7 AND 13 SHALL BE THE EXCLUSIVE REMEDY OF THE CUSTOMER.
14. Limitation of liability
14.1 The following provisions together with Conditions 6, 7 and 13, set out the entire liability of P.A. Hilton Ltd together with its employees, agents and sub-contractors arising under or in connection with the Contract for any Goods and / or Services however such liability is characterised including, but not limited to:
14.1.1 any breach of contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise;
14.1.2 any use made of any Goods and / or Services or any product incorporating any of the Goods.
14.2 Except as expressly provided in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract for any Goods and/or Services.
14.3 Nothing in these Conditions excludes or limits the liability of P.A. Hilton Ltd:
14.3.1 for death or personal injury caused by P.A. Hilton Ltd;
14.3.2 under section 2 of the Consumer Protection Act 1987;
14.3.3 for any matter that it would be illegal for P.A. Hilton Ltd to exclude or attempt to exclude its liability;
14.3.4 for fraud or fraudulent misrepresentation.
14.4 Subject to Conditions 14.2 and 14.3:
14.4.1 P.A. Hilton Ltd's total liability arising in connection with the performance of the Contract will be for direct losses only and limited to an amount equal to the Contract price; and
14.4.2 P.A. Hilton Ltd will not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, sustained by either the Customer or any third party or any claims for consequential compensation whatsoever (however caused) which arise out of or in connection with the Contract for any Goods and /or Services.
14.5 Repair or replacement of Goods, re-supply of Services or the refunding of the price in accordance with Conditions 7 or 13 shall constitute the entire remedy of the Customer under these Conditions and shall operate to discharge P.A. Hilton Ltd from all and any further liability.
14.6 Without prejudice to the notifications required under Conditions 7.2 and 13.4.1 any claims against P.A. Hilton Ltd shall be discharged and absolutely extinguished unless P.A. Hilton Ltd has been notified in writing:
14.6.1 in the case of claims respecting Goods within 24 (twenty-four) calendar months from the date when the Goods were delivered or when the Goods would in the ordinary course of events have been delivered; or
14.6.2 in the case of claims respecting the supply of Service within 24 (twenty-four) calendar months from the date when the supply of Services started or was to have started.
14.6.3 in the case of any other claims not falling within clauses 14.6.1 or 14.6.2 above within 24 (twenty-four) calendar months from the date of the event or last event giving rise to the claim.
Provided that this Condition shall be subject to a longer period arising under any express warranty given by P.A. Hilton Ltd in connection with the Goods.
14.7 P.A. Hilton Ltd shall not be liable for the cost of disposal and / or recycling of any electrical and electronic equipment arising under the Waste Electrical and Electronic Equipment (WEEE) (2012/19/EU) Directives and its implementing regulations or any re-enactment thereof ("WEEE Regulations"). Such disposal and / or recycling is solely the responsibility of the Customer. The Customer shall indemnify P.A. Hilton Ltd for any costs for the disposal of Goods arising under the WEEE Regulations.
15. Data Protection
15.1 In this Condition:
15.1.1 Data Protection Laws shall mean the General Data Protection Regulation (EU) 2016/679 ("GDPR") and any re-enactment or replacement thereof; and
15.1.2 Terms shall have the same meaning as in the Data Protection Laws; and
15.1.3 Reference to Articles shall be to Articles in the GDPR; and
15.1.4 “Controller” shall mean the party to a Contract that transfers Personal Data to the other party; and
15.1.5 “Processor” shall mean the party to a Contract that receives Personal Data from the other party.
15.2 The Processor undertakes to process Personal Data only for the purpose of performing a Contract or in accordance with the written instructions of the Controller.
15.3 The Processor undertakes:
15.3.1 to process Data only in accordance with the written instructions of the Controller (unless the Processor is subject to law that requires it to act without such instructions); and
15.3.2 to ensure that persons processing the data are subject to a duty of confidence; and
15.3.3 to take appropriate measures to ensure the security of processing as detailed in Article 32; and
15.3.4 to only engage a sub-processor with the prior consent of the Controller and on the basis of a written contract; and
15.3.5 to assist the Controller in providing subject access and allowing data subjects to exercise their rights under the Data Protection Laws;
15.3.6 to assist the Controller in meeting its obligations under the Data Protection Laws in relation to the security of processing, the notification of personal data breaches and data protection impact assessments as detailed in Articles 32 - 36;
15.3 7 to delete or return all personal data to the Controller as requested at the end of the Contract; and
15.3.8 to permit audits and inspections and to provide the Controller with any information it may need to ensure that they are both meeting their obligations under GDPR Article 28, and to inform the Controller immediately if it is asked to do something infringing the Data Protection Laws or other data protection law of the EU or a member state.
15.4 The Customer undertakes not to do anything that would cause P A Hilton to be in breach of the Data Protection Laws.
16.1 The Customer undertakes to observe and comply with all applicable laws in any relevant jurisdiction, including but not limited to applicable anti-bribery legislation.
16.2 The Customer shall refrain from anything that might cause P.A. Hilton Ltd to be in breach of the Anti-Bribery Act 2010 of the United Kingdom or any re-enactment thereof.
16.3 The Customer shall be responsible for the safety of any representatives of P.A. Hilton Ltd providing any of the Services at the premises of the Customer.
Orders that have been accepted by P.A. Hilton Ltd can only be cancelled by the Customer with the prior written agreement of P.A. Hilton Ltd and on condition that the Customer shall indemnify P.A. Hilton Ltd in full against all loss (including, without limitation, loss of profit), costs (including, without limitation, the cost of all labour and materials used), damages, charges and expenses incurred by P.A.Hilton Ltd as a result of the cancellation.
18.Termination of Contract
18.1 If the Customer:
18.1.1 breaches any of its obligations to P.A. Hilton Ltd under any Contract; or
18.1.2 is the subject of an Act of Insolvency;
then without prejudice to any other rights or remedies available to P.A. Hilton Ltd under the relevant Contract, at law or in equity, P.A. Hilton Ltd shall immediately become entitled to give written notice terminating the Contract and any other contract between P.A. Hilton Ltd and the Customer without liability to the Customer. If Goods and /or Services to be supplied under any Contract cancelled or suspended by P.A.Hilton Ltd have been delivered and/or supplied but not paid for, the price for such Goods and/or Services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
19. Force Majeure
19.1 A party shall not be liable for any failure or delay in its performance of its obligations under a Contract where such failure or delay is prevented by circumstances beyond its reasonable control, including but not limited to Acts of God, fires, floods, wars, riots, sabotage, accidents, shortages, government actions, legal restraint, or inability to obtain material, labour, equipment or transportation,
19.2 If a party is prevented from performance of a Contract as above for a continuous period of 3 (three) calendar months then either party may, at its discretion, terminate such Contract by notice in writing to the other party given after the end of this period.
Any notice required to be given under or in connection with any Contract by either party may be sent by fax, e-mail or letter to the last known address of the principal place of business (or registered office in the case of a company) of the other party or, in the case of the Customer, the address detailed on the corresponding purchase order. All such notices shall be deemed to have been received by the addressee at the following times
Fax or e-mail:
immediately following dispatch; and
within two working days or (in the case of airmail) such other time-frame as should reasonably be expected in the ordinary course of post or courier.
The Customer will fully indemnify P.A. Hilton Ltd and keep P.A. Hilton Ltd fully indemnified from and against all loss, damage, cost, expense (including legal fees) or liability (whether criminal or civil) suffered or incurred by P.A. Hilton Ltd as a result of the Customer's breach of any Contract or other breach of duty on the part of the Customer in connection with such Contract however characterised including, but not limited to, claims by third parties.
22.1 P.A. Hilton Ltd may assign the benefit of the Contract or sub contract performance of any Contract for any Goods and/or Services (or any part of it) to any person, firm or company.
22.2 The Customer will not be entitled to assign the Contract for any Goods and/or Services (or any part of it) without the prior written consent of P.A.Hilton Ltd.
23. Law and jurisdiction
23.1 English law will govern the formation, existence, construction, performance, validity and all aspects of any Contract and any issues relating to the Contract however characterised including, but not limited to, any allegations of negligence or other non contractual breaches of duty.
23.2 Both P.A. Hilton Ltd and the Customer submit themselves to the exclusive jurisdiction of the English Courts except where the country in which the Customer is constituted is not a party to an agreement or treaty to which the United Kingdom is party for the reciprocal enforcement of judgements in which case any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration ("LCIA") Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. Each party shall have the right to nominate one arbitrator. All other nominations shall be by the LCIA. Such arbitration shall take place in in the English language in London, England.
24.1 Each right or remedy of P.A. Hilton Ltd under any Contract is without prejudice to any other right or remedy of P.A.Hilton Ltd whether under the Contract or not.
24.2 If any provision of any Contract is found to be invalid, it will (to the extent of such invalidity) be deemed severable and the remaining provisions of the Contract and the remainder of such provision will continue in full force and effect.
24.3 Failure or delay by P.A.Hilton Ltd in enforcing or partially enforcing any provision of any Contract will not be construed as a waiver of any of its rights under the Contract.
24.4 Any waiver by P.A. Hilton Ltd of any breach of, or any default under, any provision of any Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
24.5 The parties to any Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it other than the employees, agents and sub contractors of P.A. Hilton Ltd to the limited extend needed to give effect to their rights arising under these Conditions.
24.6 These Conditions together with the terms and specifications contained in the acknowledgement of the Customer's order by P.A. Hilton Ltd constitute the entire terms applicable between the parties in respect of the Goods and / or Services and replace and supersede all prior agreements, collateral warranties, terms of business, representations or arrangements (whether oral or written), if any, between the parties on the subject matter of the sale of Goods and / or supply of Services. In entering any Contract the Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of P.A. Hilton Ltd that is not set out in the Contract.
24.7 Without prejudice to Condition 24.6 above any liability of P.A. Hilton Ltd for any misrepresentation is excluded unless such misrepresentation is made fraudulently.
Revised January 2019