STANDARD Terms and Conditions
These terms and conditions (“Terms”) are the Terms that apply to the purchase of Products from Hallmark Safety Ltd whose office and premises are situated at Synergy House, Canterbury Business Park, Partridge Drive, Bridge, Canterbury, Kent CT4 5D (“Hallmark”) (“we”, “us”, “our”)
1. Definitions and Interpretation
1.1 In these Terms:
- “Apparent Defects” means a defect which would be possible to be seen from the naked eye upon inspection;
- “Business Days” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales;
- Contract means the contract between Hallmark and you the sale and purchase of the Products in accordance with these Terms;
- “Customer”(“you” “your”) means the individual or business that requires the Services subject to these Terms and any Agreement;
- “Goods” means the products supplied by Hallmark;
- “Job” means the complete rendering of the Services;
- “Party” mean Hallmark or Customer;
- “Parties” means Hallmark and Customer;
- “Products” the products or goods (or any part of them) which you order from us via our catalogue or any other sales channel;
- Website means the website at wwww.hallmarksafety.com;
- Working Day means any day excluding Saturdays, Sundays and bank and public holidays in England and Wales
1.2 The headings of these clauses shall not affect the interpretation thereof.
1.3 A reference to writing or written includes e-mails.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.6 If there is any inconsistency between what is set out in any of the conditions in these Terms and what is set out in any communication in writing or variation (“Variation”) agreed in writing between the Parties the Variation shall prevail.
1.7 These Terms are the entire agreement between the Parties and supersedes any representations, documents, negotiations or understandings, whether oral or written, made, carried out or entered into before the date of receipt of these Terms, except that this clause shall not exclude liability in respect of any fraudulent misrepresentation.
2.1 Your order constitutes an offer by you to purchase Products in accordance with these Terms.
2.2 Your order shall be deemed accepted when we receive your order, at which point a Contract will come into existence between Hallmark and Customer.
2.3 Any quotation we give you shall only be valid for 30 (thirty) calendar days from the date of the quotation after which it will automatically lapse unless Hallmark agrees a longer period in writing
2.4 Product orders shall not be deemed confirmed until any deposit or pre-payment for Products is made by the Customer.
2.5 Any Hallmark quotation is not an offer but merely an invitation to the Customer to make an order for Products under these Terms.
2.6 Hallmark will not be bound to any estimates provided orally.
2.7 Hallmark will take all reasonable care to ensure that the prices of Products set out in our catalogue are correct. However if we discover an error in the price of Product(s) we shall act under the law of contract as set out in these Terms.
2.8 It is always possible that, despite our reasonable efforts, some of the Products in our catalogue may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that:
2.8.1 where the Product’s correct price is less than the price stated in our catalogue, we will make sure you are charged the lower price; and
2.8.2 subject to clause 2.9, if the Product’s correct price is higher than the price stated in our catalogue, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details we have for you, we will treat the order as cancelled and notify you in writing.
2.9 The provisions contained in sub clause 2.8.2 shall not affect our right to increase the price of the Products under clause 3.2 and you shall have no right to cancel an order as a result of a Product’s price being increased.
2.10 Hallmark may refuse to accept an order:
2.10.1 where goods are not available;
2.10.2 where Hallmark cannot obtain authorisation for your payment;
2.10.3 if there has been a pricing or product description error;
2.10.4 if you do not meet any eligibility criteria set out in our Terms; or
2.10.5 for any other reason at our sole discretion.
3. Prices, Fees and Payment
3.1 The prices of the Products will be as set out in:
3.1.1 any quotation we may give you; or
3.1.2 if we do not give you a quotation, in the most recent version of our catalogue at the time you place your order.
3.2 We reserve the right to increase the price of the Products at any time up to the date of delivery to reflect any increase in the cost of the Products which is due to:
3.2.1 any factor beyond our reasonable control (including without limitation foreign exchange fluctuation, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
3.3 Prices are subject to alteration or withdrawal without notice.
3.4 Payment for the Products and all applicable delivery charges is in advance of your order being placed unless you have an account with Hallmark in which case payment for the Products and all applicable delivery charges must be made in accordance with the payment terms we have agreed with you.
3.5 You shall pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Products.
3.6 The price of a Product does not include delivery charges, which will be added to the total amount due. Our delivery charges can be found on our Website or in our catalogue. A copy of our delivery charges is available upon request.
3.7 In the event of non-payment or default in payment by the Customer in accordance with agreed terms, Hallmark shall be entitled without prejudice to any other right or remedy to charge interest to either an individual not a business or business, as set out in the Late Payment of Commercial Debts (Interest) Act 1998 and subsequent amendments, and add any reasonable legal fees and debt recovery charges in respect of all invoices which are not wholly paid by the due date.
3.9 The Customer shall not be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under these Terms at any time.
4. Our Products
4.1 The Products are described on the Hallmark Website, in our catalogue and in our advertising materials. However, any samples, drawings, descriptive matter or advertising which we produce and any descriptions or illustrations contained on our Website or in our catalogue or in our advertising materials are produced for the sole purpose of giving you an approximate idea of the Products described. They shall not form part of the Contract and shall have no contractual force.
4.2 The packaging of the Products may vary from that shown on images on our Website, in our catalogue and in our advertising materials.
4.3 All Products shown on our Website, in our catalogue and in our advertising materials are subject to availability. We reserve the right to cancel your order if the Product you have ordered from us is not available.
4.4 We will seek to adhere to any request by you to change the delivery date(s), quantities or types of Products ordered.
4.5 Hallmark will not accept any claims for any delay caused by your instructions or your failure to give us adequate or accurate instructions or information.
5. Branding Products
5.1 If you ask us to brand Products for you:
5.1.1 you are responsible for making sure that any branding you submit to us is accurate and complete; and
5.1.2 you will indemnify us against all liabilities, costs, expenses (including legal expenses), damages and losses incurred by us in connection with any claim made against us for actual or alleged infringement of a third party’s intellectual property rights as a result of us branding the Products for you.
6. Hallmark Warranty for the Products
6.1 Subject to clause 6.3 we provide a warranty that on delivery, the Products shall:
6.1.1 conform in all material respects with their description;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be fit for any purpose specifically stated by us in writing to you.
6.2 Subject to clause 6.3, if:
6.2.1 you give us notice in writing within a reasonable time of discovery that some or all of the Products do not comply with any of the warranties set out in clause 6.1; and
6.2.2 we are given a reasonable opportunity of examining the Products; and
6.2.3 you (if we ask you to) return the Products to us at your cost
Then we will, at our option, repair or replace the defective Products or refund the price of the defective Products in full, in our absolute discretion
6.3 The warranty in clause 6.1 does not apply to any defect in the Products if:
6.3.1 the defect is an Apparent Defect which you failed to report to us in accordance with clause 7.12;
6.3.2 you make any further use of the Products after giving us notice of the defect;
6.3.3 it was caused by fair wear and tear;
6.3.4 it was caused by wilful damage, abnormal storage or working conditions, accident or negligence by you or by any third party;
6.3.5 it was caused by your failure to operate, store, commission, install, use or maintain the Products in accordance with the user instructions or good trade practice regarding the same;
6.3.6 it was caused by any alteration or repair by you or by a third party who is not one of our authorised repairers; or
6.3.7 it wascaused by us applying any branding you submit to us to the Products.
6.4 Except as provided in this clause 6 , we shall have no liability to you in respect of the Products’ failure to comply with the warranty set out in clause 6.1.
6.5 These Terms shall apply to any repaired or replacement Products which we supply to you.
6.6 Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Products. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise (including without limitation sections 13 to 15 of the Sale of Goods Act 1979) is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes even where such purposes have been notified to us.
7.1 If we have agreed to deliver the Products to you, your order will be fulfilled within a reasonable time of receipt of your order. If we have agreed that you will collect the Products from us, you must collect the Products from us within 5 (five) Working Days of us notifying you that the Products are ready for collection.
7.2 Delivery will be completed on the unloading of the Products at the address you gave us on your order form or when you collect the Products from us, depending upon what we have agreed.
7.3 Any dates quoted for the delivery of the Products are approximate only, and time of delivery shall not be of the essence. We shall not be liable for any delay in delivery of the Products that is caused by an Unforeseen Event or your failure to provide us with adequate delivery instructions or any other instructions relevant to the supply of the Products or by you failing to provide us with adequate access to your premises
7.4 If we fail to deliver the Products, our liability shall be limited to the costs and expenses you incur in obtaining replacement products of a similar description and quality in the cheapest market available, less the price of the Products.
7.5 If we are not able to deliver the whole of your order at one time due to operational reasons or shortage of stock, we will deliver the order in instalments, and each instalment shall be invoiced and paid for separately. We will not charge you extra delivery costs for this. However, if you ask us to deliver your order in instalments, we may charge you extra delivery costs. Each instalment shall be a separate Contract. If we are late delivering an instalment or if one instalment is faulty, that will not entitle you to cancel any other instalment.
7.6 If you fail to take or accept delivery of the Products when we tender them for delivery, then, except where such failure or delay is caused by an Unforeseen Event or our failure to comply with our obligations under the Contract:
7.6.1 delivery of the Products shall be deemed to have been completed at 09.00 on the day we tendered the Products for delivery; and
7.6.2 subject to clause 7.7 we will store the Products until delivery takes place, and charge you for all related costs and expenses (including insurance and any redelivery costs). the Contract or under any other contract between us without incurring any liability to you, and all outstanding sums in respect of Products delivered to you shall become immediately due.
7.7 Hallmark reserve the right to suspend deliveries to account Customers where it has reasonable belief that an insolvency event may take place.
7.8 If 30 (thirty) calendar days after the day on which we tendered the Products for delivery, you have not taken or accepted delivery of them, we may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, and the costs of removing any branding applied at your request, account to you for any excess over the price of the Products or charge you for any shortfall below the price of the Products.
7.9 You will not be entitled to reject the Products if we deliver up to and including 5% (five percent) more or less than the quantity of Products ordered, but a pro rata adjustment will be made to your invoice on receipt of notice from you that the wrong quantity of Products was delivered, subject to you providing us with evidence to our reasonable satisfaction of the over or under delivery
7.10 You must inspect the Products immediately upon delivery.
7.11 You must notify us within 3 (three) Working Days of delivery of the Products of any defects which a reasonable inspection of the Products would reveal Apparent Defects.
7.12 If you do not notify us of any Apparent Defects within 3 (three) Working Days of delivery of the Products, the Products shall be deemed not to have any Apparent Defects.
7.13 You must notify us immediately if any Products we agree to deliver to you have not arrived 3 (three) Working Days after any date we have given you for delivery of the Products.
8. International Delivery
8.1 If you order Products for delivery outside the United Kingdom, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that Hallmark have no control over these charges and we cannot predict their amount.
8.2 You will be responsible for payment of all such import duties and taxes. Please contact your local customs office for further information before placing your order.
8.3 You must comply with all applicable laws and regulations of the country for which the Products are destined. We will not be liable or responsible if you break any such laws or regulations.
9. Risk & Ownership
9.1 The risk in the Products shall pass to you on completion of delivery to you, your carrier or your nominee.
9.2 Title to the Products shall not pass to you until we have received payment (in cleared funds) for the Products; and
9.2.1 any other products that we have supplied to you.
9.3 Until title to the Products passes to you, you shall:
9.3.1 hold the Products on a fiduciary basis as our bailee;
9.3.2 store the Products separately from all other products you hold so that they remain readily identifiable as our property;
9.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
9.3.4 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from delivery;
9.3.5 give us such information relating to the Products as we may reasonably require, but you may resell or use the Products in the ordinary course of your business subject to these Terms.
9.4 If before title to the Products passes to you, you become subject to any of the events listed in clause 14.1.2 or we reasonably believe that any such event is about to happen and we notify you accordingly, then, provided that the Products have not been resold, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Products and, if you fail to do so promptly, enter your premises, or any other premises where the Products are stored, and recover the Products.
10. Liability, Indemnity and Insurance
10.1 Hallmark only supplies the Products for internal use by your business, and you agree not to use the Products for any re-sale purposes without our prior written consent.
10.2 Nothing in these Terms limits or excludes our liability for:
10.2.1 death or personal injury caused by our negligence;
10.2.2 fraud or fraudulent misrepresentation;
10.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
10.2.4 defective products under the Consumer Protection Act 1987; or
10.2.5 any other liability which we cannot lawfully limit or exclude.
10.3 Except as provided in clauses 10.2, Hallmark’s total liability in respect of any one default under a Contract shall not exceed the total amount being paid under that Contract. If a number of defaults give rise to substantially the same loss or are attributable to the same or similar cause, then they shall be regarded as giving rise to only one claim. Hallmark will be afforded a reasonable opportunity to remedy any such default.
10.4 Hallmark shall not be liable for loss of profit or goodwill of the Customer or any other person arising, directly or indirectly, from any breach of these Terms or any Agreement or for any other indirect or consequential damage whatsoever save as provided in this clause.
10.5 Except as provided in clause 10.2, Hallmark shall not be liable for:
10.5.1 loss of business, profits, revenue, anticipated savings, (even where the same arise directly from a breach of these conditions);
10.5.2 special, indirect or consequential losses, even if foreseeable by or in the contemplation of Hallmark ; or
10.5.3 any claim made against the Customer by any other person.
10.6 Hallmark is not liable for any loss or damage suffered by the Customer which results from the Customer’s failure to follow any instructions given by Hallmark.
11.1 “Confidential information” shall mean all information disclosed by one Party to the other, orally in writing or in electronic form relating to any Agreement that is not in the public domain (except where disclosure is in the public domain due to a breach of this clause). It shall also include information, documents, drawings, reports or data the Supplier may acquire or generate under or in connection with this Agreement.
11.2 Each Party shall treat all Confidential Information as secret and confidential and safeguard it accordingly and shall not disclose any Confidential Information to any third party without the prior written consent of the other Party, except to such extent as may be necessary for the performance of any Agreement.
12. Data Protection
12.1 Hallmark agree to abide by the provisions of the General Data Protection Regulations 2016/679 (GDPR 2018), the Data Protection Act 2018 and any other relevant law governing the protection of personal data,for any works they enact under these Terms.
12.2 For the purposes of the GDPR 2018, Hallmark are the data controller.
12.3 Such data will only be collected, processed and held in accordance with Hallmark’s rights and obligations arising under the provisions and principles of the GDPR 2018.
12.4 Hallmark will use the personal information you provide to us:
12.4.1 for internal record keeping purposes;
12.4.2 to carry out our obligations under any contracts entered into between you and us;
12.4.3 to improve our products and services, for example by sending you questionnaires or product review forms by post and email for you to complete; and
12.4.4 to send you promotional information by post and email about our similar products and services which we think you may find interesting.
12.5 If you do not wish to receive marketing communications from us, please email us at email@example.com or write to us at Hallmark Workwear & Safety at Synergy House, Canterbury Business Park, Partridge Drive, Bridge, Canterbury, Kent CT4 5DR to let us know that you do not want us to use your personal information for marketing purposes.
12.6 If you opt out of receiving marketing communications from us, we will suppress your personal information on our marketing database so you do not receive any further marketing communications from us.
12.7 We will need to keep some of your personal information to record the fact that you do not want to receive marketing communications from us.
12.8 We will not provide your personal information to any other person, business or organisation except:
12.8.1 to our third party carriers to allow your order to be delivered to you;
12.8.2 to credit reference companies to carry out credit checks on you;
12.8.3 if we or substantially all of our assets are acquired by a third party, in which case personal information held by us about our customers will be one of the transferred assets; and
12.8.4 if we are under a duty to disclose or share your personal information in order to comply with any legal obligation, or in order to enforce or apply our legal rights against you; or to protect our rights, property, or safety, or the rights, property or safety of our customers or others. This includes exchanging information with others for the purposes of fraud protection and credit risk reduction.
13. Force majeure
13.1 Neither Party to this Agreement shall be liable to the other nor held in breach of any Agreement if either Party is prevented, hindered or delayed in the performance of its obligations under any Agreement by any act of God, war, riot, strikes, lockouts or other industrial action by third parties, civil commotion, explosion, fire, radiation, accident, terrorism, government action, interruption in the supply of power, flood, epidemic or other circumstances beyond the control of the Parties which prevents a Party from, or hinders or delays a Party in, performing its obligations under this Agreement (and which the application of due diligence and foresight could not have prevented).
14.1 Hallmark may immediately terminate any order if:
14.1.1 Customer commits a fundamental breach of its obligations without remedy under order or agreement;
14.1.2 you suspend, or threaten to suspend, payment of your debts, or you are unable to pay your debts as they fall due or your admit inability to pay your debts, or (being a company) you are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) you are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) you have any partner to whom any of the foregoing apply;
14.1.3 you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or you make a proposal for or enter into any compromise or arrangement with your creditors other than (where you are a company) where these events take place for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or for your solvent reconstruction;
14.1.4 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or for your solvent reconstruction;
14.1.5 (being an individual) you are the subject of a bankruptcy petition or order;
14.1.6 one of your a creditors or encumbrancers attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 (fourteen) calendar days;
14.1.7 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you;
14.1.8 (being a company) a floating charge holder over your assets has become entitled to appoint or has appointed an administrative receiver;
14.1.9 a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
14.1.10you suspend, threaten to suspend, cease or threaten to cease to carry on all or substantially the whole of your business;
14.1.11your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
14.1.12(being an individual) you die or, by reason of illness or incapacity (whether mental or physical), you are incapable of managing your own affairs or you become a patient under any mental health legislation.
14.2 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
14.3 Upon the termination of any Contract for any reason:
14.3.1 any sum owing to Hallmark under any of the provisions of any agreement shall become immediately due and payable;
14.3.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of any Contract or agreement shall remain in full force and effect;
14.3.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of any agreement which exist at or before the date of termination;
Failure by either Party at any time to enforce the provisions of an Agreement or to require performance by either Party of any of the provisions of an Agreement Terms shall not be construed as a waiver of or as creating an estoppel in connection with any such provision and shall not affect the validity of an Agreement or any part thereof or the right of either Party to enforce any provision in accordance with its terms.
If any provision or term of any Agreement or any part of it shall become unenforceable for any reason whatsoever, including but without limitation by reason of the provisions of any legislation, Regulation, Order, Direction of the Secretary of State or other provision having the force of law or by reason of any decision of any Court of competent jurisdiction, the validity and enforceability of the remainder of any Agreement shall not be affected thereby and shall remain in full force and effect. Where any such provision or decision substantially affects or alters the ability of either of the Parties to comply fully with its contractual obligations the Parties shall negotiate in good faith to amend and modify the provisions and terms of any Agreement as may be necessary or desirable in the circumstances.
17. Notices and Communication
17.1 All notices served under any Contract shall be in writing or email. Notices not sent by email shall be delivered by hand or sent by pre-paid first class recorded delivery post to our office at Synergy House, Canterbury Business Park, Partridge Drive, Bridge, Canterbury, Kent CT4 5DR (which address may be amended by notice in accordance with this clause). The address for service for any Customer will be that set out in the most recent contract or agreement. Notices sent by post shall be deemed to have been received by the addressee 2 days after the day on which they were posted (excluding weekends and public holidays). E mail will be deemed served the same Working Day if sent up to 18.00 or at 09.00 the next Working Day.
17.2 Any notice or communication sent by you to us via email under or in connection with any Contract shall only be valid if sent to us by e-mail to firstname.lastname@example.org.
18. Assignment and Sub-Contracting
18.1 Hallmark shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors.
18.2 You may not at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.
18.3 You confirm that you have authority to bind any business on whose behalf you order Products.
19. Relationship of the Parties
Nothing in any Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in any Agreement.
In the event that one or more of the provisions of any Agreement and/or of these Terms is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of any Agreement and/or these Terms. The remainder of any Agreement and/or these Terms shall be valid and enforceable.
No variation or modification of or substitution for these Terms (even if included in or referred to in the document placing the order) shall be binding on Hallmark unless specifically accepted by Hallmark in writing.
22. Contracts (Rights of Third Parties)
The Contracts (Rights of Third Parties) Act 1999 shall not apply to any Agreement and no person who is not a party to any Agreement shall be entitled to enforce any of the provisions of any Agreement pursuant to that Act.
23. Governing law
These Terms are governed by, and are to be construed in accordance with, English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.