Terms and conditions
1.1 In these Conditions:
The supplier’s policy on acceptable use of the services available is available at www.hamishandmilo.org and will be updated as needed at relevant times. Hamish & Milo is registered in England and Wales under company number 13467602 and our registered office is 5 Osborne Road, Wimborne, Dorset BH21 1BL. Hamish and Milo trading office is: 7 Bluebell Crescent, Wimborne Minster, Wimborne Dorset BH21 4 FA.
“Customer” means the person who accepts a quotation from Hamish & Milo Ltd for the sale of the products detailed in the order documentation, or whose order for the products is accepted by Hamish & Milo Ltd.
“Products” means the teaching and educational materials which Hamish & Milo Ltd supply in accordance with these Conditions and any products supplied in substitution for or in replacement of or in addition to such goods.
“Supplier” means Hamish & Milo Ltd (registered in England under number 13467602).
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Products.
“Writing” includes letters, email and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of sale
2.1 The Supplier shall sell and the Buyer shall purchase the Products in accordance with any written quotation of the Supplier which is accepted by the Customer, or any written order of the Customer which is accepted by the Supplier, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and the Supplier.
2.3 The Supplier’s employees or agents are not authorised to make any representations concerning the Products unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Supplier is followed or acted upon entirely at the Customer’s own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3. Orders and specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed by the Supplier’s authorised representative.
3.2 The Customer shall be responsible to the Supplier for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the customer and for giving the Supplier any necessary information relating to the products within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the products shall be those set out in the Seller’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Supplier).
3.4 If the products are to be manufactured or any process is to be applied to the products by the Supplier in accordance with a specification submitted by the Customer, the Customer shall indemnify the Supplier against all loss damages, costs and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Supplier’s use of the Customer’s specification.
3.5 The Supplier reserves the right to make any changes in the specification of the Products which are required to conform with any applicable safety or other statutory requirements or, where the products are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in Writing of the Supplier and the Customer shall indemnify the Supplier in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of any cancellation. However, from the date of the order, a 14-day cooling off period will be allowed during which cancellations or reducing the order will be accepted by the seller without penalty. Without prejudice to the generality of the foregoing, should the Customer purport without the agreement in Writing of the Supplier to cancel any order which has been accepted by the Supplier or refuse to accept delivery of any of the Products such action shall constitute a breach of the agreement and, at the option of the Supplier, the Supplier shall be entitled to require the Customer to pay to the Supplier by way of liquidated damages an amount equivalent to 50% of the invoice value of the order so purported to be cancelled or 50% of the invoice value of the products delivery of which is so refused (as the case may be). In the event of the Supplier so requiring, the Customer shall pay such amount to the Customer (without any deduction) within 7 days of receiving from the Supplier written notification of the amount required to be paid. The Supplier and the Customer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Supplier as a result of such breach of agreement on the part of the Customer. For the avoidance of doubt, in the event that the Supplier opts to require the Customer to pay liquidated damages as set out above, and the Customer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the products in respect of which such liquidated damages are paid.
4. Price of the products
4.1 The price of the products shall be the Supplier’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the products are supplied for export from the United Kingdom, the Supplier’s published export price list relating to the country of destination shall apply. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Supplier on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Supplier without giving notice to the Customer.
4.2 The Supplier reserves the right by giving notice to the Customer at any time before delivery to increase the price of the products to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, a significant increase in the costs of labour, materials or other costs of manufacture) or to any change in delivery dates, quantities or specifications for the products which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Supplier, and unless otherwise agreed in Writing between the Supplier and the Customer, all prices are given by the Supplier are exclusive of carriage charges.
4.4 The price is inclusive of value added tax at 20% standard rate for goods and services.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Customer and the Supplier the Supplier shall be entitled to invoice the Customer for the price of the Products at any time before or after delivery of the Products.
5.2 All Invoices are payable net by credit card or on a pro-forma basis, unless credit facilities have been approved, in which case Invoices are payable net by the end of the month following the date of the invoice. The Customer shall pay all invoices without any other deductions, notwithstanding that delivery may not have taken place and the property in the Products has not been passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to.
5.3.1 cancel the contract or suspend any further deliveries to the Customer;
5.3.2 appropriate any payment made by the Customer to such of the Products (or the products supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer) and
5.3.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 8% per above Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 In the event that the Supplier shall cancel the contract under the provisions of Clause 5.3.1 above, the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Supplier, the Supplier shall be entitled to require the Customer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the contract so cancelled. In the event of the Supplier so requiring, the Customer shall pay such amount to the Supplier (without any deduction) within seven days of receiving from the Supplier written notification of the amount required to be paid. The Supplier and the Customer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Supplier as a result of such cancellation.
6.1 Delivery of the Products may be made by the Customer collecting the Products at the Supplier’s premises at any time after the Supplier has notified the Buyer that the Products are ready for collection or, if some other place for delivery is agreed by the Supplier, by the Supplier delivering the Products to that place.
6.2 Any dates quoted for delivery of the Products are approximate only and the Supplier shall not be liable for any delay in delivery of the Products howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Products may be delivered by the Supplier in advance of the quoted delivery date upon giving reasonable notice to the Customer. The Supplier shall be entitled to make part delivery of the Products at any time.
6.3 Where the Products are delivered in instalments, each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.4 If the Supplier fails to deliver the Products for any reason, other than any cause beyond the Supplier’s reasonable control or the Customer’s fault, and the Supplier is accordingly liable to the Customer, the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar products to replace those not delivered over the price of the Products.
6.5 If the Customer fails to take delivery of the Products or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
6.5.1 store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the Products shall pass to the Customer:
7.1.1 in the case of Products to be delivered at the Supplier’s premises, at the time when the Supplier notifies the Buyer that the Products are available for collection: or
7.1.2 in the case of Products to be delivered otherwise than at the Supplier’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Products, the time when the Supplier has tendered delivered of the Products.
7.2 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as the Supplier’s fiduciary agent and bailee and shall keep the Products separate from those of the Customer and third parties and properly stored protected and insured and identified as the Supplier’s property.
7.3 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold) the Seller shall be entitled at any time to require the Customer to deliver up the Products to the Supplier and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
7.4 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Supplier but if the Customer does so all moneys owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) become due and payable.
7.5 For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Customer to return any of the Product to the Supplier save as expressly provided in these terms and conditions or as expressly agreed in writing between the Supplier and the Customer.
8. Warranties and liability
8.1 Subject to the conditions set out below, the Supplier warrants that the Products will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery.
8.2 The above warranty is given by the Supplier subject to the following conditions:
8.2.1 the Supplier shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Customer:
8.2.2 the Supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Supplier’s instructions (whether oral or in writing), misuse or alternation or repair of the Products without the Supplier’s approval.
8.2.3 the Supplier shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment.
8.2.4 the above warranty does not extend to Products not manufactured by the Supplier, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier.
8.3 Subject as expressly provided in these Conditions, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Products are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Customer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Supplier within 30 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Supplier accordingly, the Customer shall not be entitled to reject the Products and the Supplier shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Products had been delivered In accordance with the Contract.
8.6 Any claim by the Customer which is based on short delivery or non-delivery shall be notified to the Supplier in Writing (in the case of short delivery) within 7 days of delivery and (in the case of non-delivery) within 30 days of receipt by the Customer of the Supplier’s Invoice for the products which the Customer claims have not been delivered. If the Customer does not notify the Supplier accordingly the Customer shall not be entitled to reject any products that have been delivered and the Supplier shall have no liability for such short delivery or non-delivery.
8.7 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet specification is notified to the Supplier in accordance with these Conditions the Seller shall be entitled to replace the Products or (refund to the Customer the price of the Products) (or a proportionate part of the price), but the Supplier shall have no further liability to the Customer.
8.8 Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Supplier, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Customer, except as expressly provided in these Conditions.
8.9 The Supplier shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Products if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
9. Data Protection
9.1 The parties agree that in respect of the services, the Customer shall be the controller and the Supplier shall be the processor.:
9.2 Each party shall;
9.2.1 at all times during the term, comply with the applicable data protection laws
9.2.2 to the extent applicable under the data protection laws, obtain and maintain all appropriate registrations required in order to allow it to perform its obligations under the Agreement.
9.3 Processing of the Protected data by the Supplier under this Agreement shall be for the subject matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this clause 11.5. The supplier will host the Platform used by the customer to assist with the Customers’ Authorised users access to the teaching materials on the Platform in accordance with the terms of this Agreement and the Acceptable Use Policy. The nature of the processing is granting of Platform access. The types of Personal Data processed are identification information; name, job title and email address. Such types of Personal Data relate to the Customer’s Authorised Users.
9.4 In relation to the Protected Data, to the extent that the Supplier is the processor of such personal data, the supplier shall:
9.4.1 unless required to do otherwise by applicable laws, only process the Protected data in accordance with the Customer’s documents instructions and in accordance with clause 11.3 of this Agreement.
9.4.2 taking into account the nature of the processing, implement appropriate technical and organisational measures to protect the Protected Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.
9.4.3 not, without the prior written consent of the Customer, transfer any Protected data to a country or territory outside both the United Kingdom and European Economic Area unless adequate contractual or other assurances have first been put in place such as will enable each party to comply with the requirements of the Data protection Laws.
9.4.4 take reasonable steps to ensure the reliability of its personnel who have access to any Protected Data and ensure that Protected data shall only be accessible by its personnel to the extent they need to know or require access for the purpose of their duties this Agreement and who are contractually bound to maintain its confidentiality.
9.4.5 notify the Customer without undue delay of any Personal Data Breach that it becomes aware of and provide reasonable assistance to the Customer in any such case.
9.4.6 the Customer’s obligations to respond to any complaint or request from any applicable data protection authority or Data Subjects seeking to exercise their rights under any Data Protection laws, including by notifying the Customer of each subject access request the supplier receives.
9.4.7 make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 9 and to demonstrate compliance on each party imposed by Article 28 of the UKGDPR (and under any equivalent Data protection Laws to that Article 28), and allow for audits at the customer’s costs, including inspections, by the Customer for this purpose.
9.5 The supplier shall inform the Customer without undue delay if the Supplier believes that a processing instruction infringes Data Protection laws, provided that to the maximum extent permitted by mandatory law, the Supplier shall have no liability whatsoever arising (whether in contract or otherwise) for any losses arising from or in connection with any processing in accordance with the Customer’s unlawful processing instructions.
10.1 The Customer shall indemnify and keep indemnified the Supplier against all losses suffered or incurred by the Supplier arising out of or in connection with:
10.1.1 any claim made against the Supplier alleging infringement as a third party’s Intellectual Property Rights arising out of the Supplier’s use of Customer Materials or Customer Marks save to the extent that such infringement is a result of the Supplier’s use of the Customer materials not in accordance with this Agreement; and
10.1.2 the Customer’s (or its authorised users’) use of the platform, Services or products not in accordance with this Agreement.
10.2 The Supplier agrees to indemnify the Customer against any losses suffered or incurred by the Customer directly arising out of or in connection with any third party claim that Customer’s use of the services in accordance with this agreement directly infringes a third party’s Intellectual property rights save to the extent that such infringement is a result of the Customer’s use of the Services not in accordance with this Agreement.
10.3 If any third party makes a claim, or notifies an intention to make a claim against the Customer which may reasonably be considered likely to give rise to a liability under clause 10.2 the Customer shall:
10.3.1 Immediately give written notice of the Indemnity Claim to the Supplier
10.3.2 Not make any admission of liability, agreement or compromise in relation to the Indemnity claim without the Supplier’s prior written consent; and
10.3.3 allow the Supplier to conduct all negotiations and proceedings and provide the Supplier with all reasonable assistance, documents, records and information as required by the Supplier regarding the claim.
10.4 If an indemnity Claim is made to the Supplier, the Supplier may if applicable, either;
10.4.1 procure for the Customer the right to continue using the relevant item which is subject to the Indemnity Claim, or
10.4.2 replace or modify the relevant item with non-infringing substitutes.
10.5 Nothing in this Clause shall restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this Clause 10.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party given the notice
11.2 No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 The contract shall be governed by the laws of England.