General Terms and Conditions of Sale and Delivery
Article 1 Definitions
The following definitions apply to these general terms and conditions:
The Client: the counterparty to Mineheart.
The Agreement: the purchase and sale agreement.
Article 2 General
2.1 These general terms and conditions apply to all offers and agreements between Mineheart and the Client, unless they are expressly stated in writing not to apply.
2.2 The application of any general terms and conditions used by the Client is expressly excluded.
2.3 If any provisions in these general terms and conditions are void or revoked by the courts, the remaining provisions remain in
force. Mineheart and the client shall negotiate substitute
provisions that are in line with the original provisions in terms of purpose and scope.
Article 3 Offers
3.1 All offers are subject to contract, unless indicated otherwise in writing.
3.2 An agreement shall take effect EITHER once an offer is accepted by the Client and confirmed by Mineheart in writing as an order, OR if an order placed by the Client is confirmed in writing by Mineheart or a start has been made on carrying out the order.
3.3 If the agreed price, discounts or delivery times are based on an apparent error, Mineheart is entitled to correct the mistakes or to cancel the order; the Client has the same right.
Article 4 Price and payment
4.1 All quoted prices are exclusive of VAT and other government duties, as well as any costs incurred in the context of the agreement, such as administrative, transport and COD charges.
4.2 If an additional discount is agreed for the purchase of a certainty quantity or range in an order, Mineheart is not obliged to apply the additional discount if fewer or different goods than those agreed are ordered.
4.3 Unless expressly agreed otherwise, all orders are accepted on the basis of DOWNPAYMENT or PRE-PAYMENT.
4.4 a. Payment condition for DOWNPAYMENT INVOICE: The amount invoiced to be paid in advance must be paid NO LATER THAN 2 weeks BEFORE the scheduled delivery date into the bank account of Mineheart.
4.4 b. Payment condition for NON-down payment invoice NETT payment strictly within 30 days, unless expressly agreed otherwise. The above does not prevent Mineheart, for reasons of its own, from requiring at any time security for compliance with these financial obligations.
4.5 If the invoiced amount is not paid into the bank account of Mineheart within the payment term, then the Client is in breach by process of law without the need for any notice of default and is liable for interest on the unpaid amount at 1% per month or part month, or at the statutory interest rate current in the England, until payment.
4.6 In the event that collection becomes necessary then all collection costs are payable by the Client equal to 10% of the principal owed with a fixed minimum of GBP 150.
4.7 If the debt collection involves court proceedings then all legal costs, including legal advice and representation in court and out of court, as well as all execution costs, shall be paid by the Client.
4.8 Even if the Client is of the view that the quality of the delivered goods is not in accordance with what he purchased, this does not release him from the obligation to pay.
4.9 If fewer goods are delivered, or received in good
condition, than invoiced, and the Client objects in good
time, the Client remains liable for the amount invoiced in respect of the goods received in undamaged condition.
Article 5 Delivery / Transport Damage
5.1 Delivery shall be ex works from the manufacturer or from the warehouse of Mineheart; within certain European countries delivery is made carriage paid, on the basis that for each order a contribution towards carriage charges can be imposed.
5.2 The Client shall purchase the goods as at the moment they are delivered by Mineheart, or at the moment that they are available to the Client.
5.3 If the Client refuses to make the purchase or fails to provide the information or instructions to enable delivery, then Mineheart is entitled to store the goods at the expense and risk of the Client.
5.4 Notification of a delivery date is always indicative and not a deadline. If the delivery date is exceeded, the Client is still obliged to purchase the goods unless before delivery the Client serves Mineheart with a notice of default, provides Mineheart with a further reasonable period in which to deliver, and this period also expires.
5.5 Mineheart is entitled to supply the goods in installments and to invoice separately for each installment.
5.6 The delivery period for goods where it is agreed that the goods are all or in part ready to be sent and delivered (i.e. DOWNPAYMENT INVOICE), starts to run from the sixth day following the day after the date of the confirmation of the order.
5.7 If a DOWNPAYMENT INVOICE is not paid, Mineheart has the option of terminating the agreement or seeking to enforce compliance. In the latter case, Mineheart is entitled to amend the price previously agreed in line with any subsequent price increases. The obligation of Mineheart d to deliver will be suspended for the same duration as the non-payment.
5.8 When the goods are delivered, the Client shall check the condition of the packaging and, if this has any defects, show these on a diagram on the delivery note. If there is any serious defect to the packaging, the Client shall, in the presence of the driver, open the packaging to check the goods for damage. The Client shall notify Mineheart immediately of this and e-mail it a photo of the condition in which the goods and packaging have been delivered.
5.9 If it is discovered that the goods are damaged as a result of the faulty packaging, the Client shall reject the goods and hand them back to the driver. The Client shall immediately notify Mineheart of this by fax or e-mail.
Article 6 Cancellation
6.1 Unless notified otherwise, an order can be cancelled or changed for up to five working days following the date the order was made.
6.2 In other cases an order cannot be cancelled without the express consent of Mineheart.
6.3 If Mineheart should agree to the whole or partial cancellation of, or change to, an order, it may attach financial conditions to this. This applies particularly to products no longer in stock or products that need to be produced in a non-standard size or colour (SPECIALS).
6.4 If costs are already incurred in the performance of an agreement before there is agreement to cancel the whole or part of the agreement, the Client shall pay these costs on demand by Mineheart.
Article 7 Changes to specifications, complaints and returns
7.1 There could be small changes to the specifications of certain products in terms of shape or colour, according to the material from which the products are manufactured. Despite any such changes to specifications, Mineheart has nevertheless complied with its obligation to supply.
7.2 If the goods are not delivered in good condition or, in the opinion of the Client they are not in accordance with the order or not all goods have been delivered as per the order, the Client shall immediately notify Mineheart of this, and in any event not later than the fifth working day following the day on which the goods are received, by e- mail or fax. Mineheart is not obliged to deal with complaints that are received too late. If the Client files a complaint, it must provide as clear a description as possible of the defect and attach a digital photo to the e-mail.
7.3 A complaint is not justified if the goods are not used in accordance with the instructions for use, if they are used inexpertly or not used for the purpose for which they were intended or if any defect is caused by the lack of care of the Client.
7.4 If the goods are damaged through transport, the Client should send to Mineheart the copy of the delivery note showing way in which the goods were delivered in a damaged state on a diagram. If there is no such diagram on the delivery note, then Mineheart shall not accept the complaint. See also the provisions in Article 5.8 et seq.
7.5 If the complaint is found to be justified by Mineheart, then Mineheart has the choice of either terminating the agreement with regard to the defective goods and crediting the Client, or replacing the defective goods with similar goods.
7.6 Goods that are the subject of a complaint may only be returned to Mineheart if Mineheart has given prior written consent for this or has indicated that it wishes for the goods to be returned. In the latter case, the goods shall be returned to Mineheart as soon as possible. If the goods are not returned within eight days of the request for their return, it is assumed that the Client wises to keep the goods and has withdrawn the complaint. In such a case, the full purchase price is payable for the goods.
7.7 If in response to a justified complaint Mineheart has replaced the defective goods, then Mineheart is deemed to have delivered such goods in good time, even if the deadline set by the Client has expired.
7.8 In the event of a complaint, the Client shall follow the instructions which Mineheart will fax to the Client on request.
Article 8 Suspension and termination
8.1 Mineheart is entitled to suspend in whole or in part performance of its obligations under any agreement or to terminate the agreement if:
- the Client has failed to comply on time, in full or at all with its obligations under previous agreements;
- if having entered into the agreement, Mineheart has good grounds to fear that the Client will not (be able to) comply with its payment obligations;
- the Client was requested at the time the agreement was entered into to provide security but has failed to supply any such security or any adequate security.
8.2 If, due to delay on the part of the Client. Mineheart can no longer be expected to comply with the agreement upon
the terms originally agreed, then Mineheart is entitled to terminate the agreement.
8.3 Mineheart is also entitled to terminate the agreement if circumstances arise whose nature and extent means that Mineheart cannot be expected according to the principles of reasonableness and fairness to perform the original agreement.
8.4 If the cause of the termination is within the scope of the risk of the Client, or is caused by any act or omission of
the Client, then Mineheart is entitled to claim for the costs it has incurred and for any loss of profit.
Article 9 Liability
9.1 Mineheart accepts liability for loss suffered by third parties insofar as this is the result of the application of the
Product Liability Act and up to the maximum amounts referred to in that Act.
9.2 Mineheart does not accept loss other than or in exceeding that specified in the previous section, unless caused by a deliberate act or gross negligence on the part of Mineheart.
If Mineheart is liable on the grounds referred to above, then any liability for loss of profit or consequential loss is expressly excluded.
9.3 The liability of Mineheart is at all times limited to a maximum of the amount of the goods that are damaged. Liability for any further damage is expressly excluded.
9.4 Any other damage, including loss of profit and consequential loss, resulting from failure to deliver on time or at all, is expressly excluded. There is no liability for failure to comply on time or at all.
Article 10 Force majeure
10.1 In the event of force majeure, all the obligations of either party are suspended until the situation of force majeure is over. If the force majeure lasts longer than eight full weeks, then either party is entitled to terminate the agreement without any liability to compensate the other party.
10.2 ‘Force majeure’ includes, in addition to the circumstances prescribed by legislation and case law, import and export bans by, or due to, any government, the failure of suppliers or service providers of Mineheart to deliver on time or at all, suspension of work by, or a high amount of sick leave amongst, the employees of Mineheart or its suppliers.
10.3 Mineheart is also entitled to rely on force majeure if the situation of force majeure begins after Mineheart should have fulfilled its obligations.
10.4 Insofar as at the time the situation of force majeure commences Mineheart has partly fulfilled its obligations under the agreement or is still able to do so, then Mineheart is entitled to invoice for all the parts of the agreement it has complied with or will comply with. In such a case the Client is obliged to pay this invoice as if it were a separate agreement.
Article 11 Retention of title
11.1 All goods delivered remain the property of Mineheart until the Client has fulfilled its obligations to Mineheart in full. If any invoice remains unpaid, Mineheart’s retention of title shall also cover all goods previously delivered which have been paid for by the Client.
11.2 Goods delivered by S Mineheart subject to retention of title may only be sold on in the context of normal business practice.
11.3 The Client is not authorized to process, pledge or otherwise encumber the goods subject to retention of title.
11.4 If any attachment is levied by a third party upon the goods subject to retention of title, then the Client shall inform the party levying the attachment of the retention of title and notify Mineheart of this immediately.
11.5 The Client undertakes to keep insured the goods subject to the retention of title against fire, explosion, or water damage, as well as against theft. On demand by Mineheart, the Client shall provide a copy of the insurance policy, as well as ensure that the rights under the insurance policy covering the goods subject to the retention of title shall be transferred to Mineheart or that Mineheart is subrogated in these rights.
Article 12 Intellectual property rights and copyrights
12.1 Mineheart retains the rights and powers it accrues on the basis of the Copyright Act and other intellectual and industrial legislation and regulations relating to all the goods it supplies, insofar as these rights do not belong to any third party.
12.2 The Client may not have goods supplied by Mineheart copied elsewhere, or manufacture imitations thereof that differ in only minor details from the goods supplied, or become directly or directly involved in this.
Article 13 Applicable law / disputes
13.1 All agreements are subject to the laws of England.
13.2 The court with exclusive jurisdiction is that covering the area where Mineheart has its registered office at the time a dispute arises. This also applies if the goods have been delivered in part or entirely abroad or if the Client has its registered office or is domiciled abroad, unless mandatory law provides otherwise.
13.3 The parties shall always endeavour to resolve a dispute amicably, before any application is made by either party to the courts.
Article 14 Translation, versions
14.1 In the event that these general terms and conditions are available in a language other than English, and there is any dispute as to interpretation or explanation, then the English text of these general terms and conditions shall prevail.
14.2 The version that is binding is the latest version at the time the agreement is entered into.
Insofar as is permitted by law where Work is defective for any reason, including negligence, the company’s liability (if any) shall be limited to rectifying such defect, or crediting its value against any invoice raised in respect of the Work.
Where the Company performs its obligations to rectify defective Work under this condition the Company shall not be liable for indirect loss, consequential loss or third party claims occasioned by defective Work and the Buyer shall not be entitled to any further claim in respect of the Work nor shall the Buyer be entitled to repudiate the contract, refuse to pay for the work or cancel further deliveries. The Company shall not be liable for indirect loss, consequential loss or third party claims occasioned by delay in completing the work or for any loss to the Buyer arising from delay in transit, whether as a result of the Company’s negligence or otherwise. Where the Company offers to replace defective Work the Buyer must accept such an offer unless he can show clear cause for refusing so to do. If the Buyer opts to have the work re-done by any third party without reference to the Company the Buyer automatically revokes his right to any remedy from the Company, including but not exclusively the right to a credit in respect of Work done by the Company.