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ABBEYCHART– TERMS AND CONDITIONS OF SALE TO BUSINESS CUSTOMERS
In these conditions the following words have the following meanings:
You or Your: the person(s), firm or company who purchase the Goods from Us or to whom We supply Ser vices:
We, Us, Our or Ourselves: Hawco Limited registered under company number 01537960 whose registered office is at 12 Charterhouse Square, London EC1M 6AX, trading as ABBEYCHART; Contract: any contract between Us and You for the sales and purchase of the Goods or for the supply of Services by Us to You, incorporation the Conditions.
Goods: any goods agreed in the Contract to be supplied to you by us (including any part or parts of them);
Services: any services agreed in the Contract to be supplied to You by Us and any other advice given by Us to You.
2.APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.4 the Contract will be on these conditions to the exc lusion of all other terms and conditions (including any terms or conditions which You purport to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in Your purchase order, confirmation of order, specification or other document wi ll form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 The Contract constitutes the entire agreement between the parties. You acknowledge that You have not relied on any statement, promise or representation made or gi ven by or on Our behalf which is not set out in the Contract. All drawings, descriptive matter, specifications and advertising issued by Us and any descriptions or illustrations contained in Our catalogues or brochures are issued or published for the sole purpose of gi ving an approximate idea of the Goods and Ser vices described in them. They will not form part of this Contract or any other contract between us.
2.4 These conditions apply to all Our sales and any variation to these conditions and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by one of Our directors.
2.5 Each order for Goods or Ser vices by You from Us shall be deemed to be an offer by You to purchase Goods or Ser vices subject to these conditions.
2.6 No order placed by You shall be deemed to be accepted by Us until: (a)a written acknowledgement of order is issued by Us; or
(b)in the case of orders placed online, We telephone You to confirm acceptance of Your Order; or
(c)(if earlier) We deliver the Goods to You or supply the Ser vices to You.
2.7 You must ensure that the terms of Your order and any applicable specification are complete and accurate.
2.8 Any quotation for the Goods and Ser vices shall not constitute an offer. Any quotation is valid for a period of 30 days only from its date, provided that We have not previously withdrawn it.
2.9 Any samples submitted by Us must be returned to Us, carriage paid, within one month of the date of despatch by Us, or paid for.
2.10 No order which has been accepted by Us may be cancelled by You except with Our agreement in writing and on terms that You shall indemnify Us in full against all loss (including loss of profits), costs (including cost of all labour and materials used), damages, charges and expenses incurred by Us as a result of cancellations.
2.11 Any order valued below £50.00 (ex VAT) will have a standard £15.00 minimum order surcharge applied to each deli very, covering delivery by next day carrier, packing, insurance and administration.
3.1 The description of the Goods or Services shall be as set out in Our quotation.
3.2 We reserve the right to make changes in the specification of the Goods or Ser vices which are required to conform with any applicable safety or other statutory requirements or, where the Goods or Ser vices are to be supplied to Your specification, which do not materially affect their quality or performance.
3.3 If Goods are altered, assembled or adapted to Your design or specification or any processes are to be applied to the Goods by Us in accordance with a design or specification submitted by You, You represent and warrant that You have all necessary rights to instruct Us to do so and shall indemnify Us against all loss, damages, costs and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual proper ty rights of any other person which results from Our use of Your design or specification.
3.4 Any specification supplied by Us to You in connection wi th the Contract, together with the copyright, design rights or any other intellectual property rights in the specification shall be Our exclusi ve proper ty. You shall not disclose to any third party or use any such specification except to the extent that it becomes public knowledge through no fault of Yours, or as required for the purpose of the Contract.
4.DESPATCH AND DELIVERY
4.1 Unless other wise agreed, deli very of the Goods shall take place at Your place of business.
4.2 While every reasonable effort wi ll be made to fulfil deli very dates, any dates quoted for delivery of the Goods are approximate only and We shall not be liable for any delay in deli very of the Goods however caused but the following provisions shall have effect:
(a)time for delivery shall not be of the essence of the Contract;
(b)in the event that the delay exceeds 180 days after the agreed deli very date, the parties shall meet to discuss a revised date for deli very. In absence of any agreement, You shall be entitled to ter minate or rescind the Contract in so far as it relates to the delivery consignment in question;
(c)the foregoing provisions shall be Your exclusive remedy in respect of such delay in delivery.
4.3 Scheduled deli veries can only be agreed during a period commencing no sooner than one month and ter minating no later than 12 months from the date of the order. At least 30 days written notice is required of any modification or suspension of scheduled deliveries. Any suspension will be li mited to a maximum period of 3 months after which deli veries may be resumed at the former rate.
4.4 If You fail to take deli very of the Goods or fail to gi ve Us adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond Your reasonable control or by reason of our fault) then without prejudice to any right or remedy available to Us, We may:
(a)store the Goods until actual deli very and charge You for the reasonable costs (including insurance) of storage, and charge You also interest as provided in clause 10.6 on the delayed payment until such payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); or
(b)sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to You for the excess over the price under the Contract or charge You for any shortfall below the price under the Contract.
4.5 Once deli vered no Goods may be returned to Us without Our prior written consent.
4.6 Subject at all times to clause 4.2, any order delivered by pallet carrier, will be sent on a 3 day ser vice (delivery within 3 days). A next day service can be requested when an order is placed and You will be charged at the appropriate requested ser vice rate. Smaller orders sent on free deli very basis wi ll be sent via a parcel carrier on a next day before 5.00 p.m. service. You may request an enhanced delivery service when You place an order and if We in Our absolute discretion accept Your request We will confirm the estimated time for deli very and You will be charged at the appropriate requested ser vice rate.
4.7 You shall not be entitled to reject the Goods if We deliver up to and including 5% more or less than the quanti ty of Goods ordered, but a pro rata adjustment shall be made to Order invoice on receipt of notice from You that the wrong quantity of Goods was deli vered.
4.8 We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 Where necessary You shall inform the Us at a reasonable time before delivery abroad, of any documents which it is necessary for Us to provide in order to allow export or import of Goods in compliance wi th the laws of any relevant jurisdiction.
5.1 The quantity of any consignment of Goods as recorded by Us upon despatch from Our works shall be conclusive evidence of the quantity received by You on deli very unless You can provide conclusive evidence proving the contrary. In any event shor tage claims will only be considered if the carrier and Ourselves receive written notice of such shortage within three days of deli very.
5.2 We shall not be liable for any non-delivery of Goods unless written notice is given to Us within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Our liabi lity for non-delivery of the Goods shall be li mited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
Subject at all times to clause 3.4, We will carry out tests on the Goods at Our works before despatch if We agree to provide any Services to alter or apply processes to the Goods and the manufacturer recommends that we carry out such tests. If such tests are required, these will be carried out solely in accordance with the manufacturer's instructions and unless other wise agreed, must be made at Our works and will be charged for in addition to the Contract price, and in the event of any delay on Your part in attending such tests after seven days notice that We are ready, the tests wi ll proceed in Your absence, and shall be deemed to have been made in Your presence. We are not liable under the warranties in condition 11.2 for defects in samples of Goods made avai lable for testing.
7.1 The Goods are at the risk of the Buyer from the time of deli very.
7.2 Ownership of the Goods shall not pass to You until we have received in full (in cash or cleared funds) all sums due to Us in respect of:
(a)the Goods; and
(b)all other sums which are or which become due to Us from You on any account.
7.3 Until ownership of the Goods has passed to You, You must: (a)hold the Goods on a fiduciary basis as Our bai lee;
(b)not incorporate the Goods into or amalgamate the Goods with any other product;
(c)store the Goods (at no cost to Us) separately from all Your other goods or those of any third party in such a way that they remain readily identifiable as Our property;
(d)not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(e)maintain the Goods in a satisfactory condition and keep them insured on Our behalf for their full price against all risks to Our reasonable satisfaction. On request You shall produce the policy of insurance to Us; and
(f)hold the proceeds of the insurance referred to in condition 7.3(e) on trust for Us and not mi x them with any other money, nor pay the proceeds into an overdrawn bank account.
7.4You may resell the Goods before ownership has passed to You solely on the following conditions:
(a)any sale shall be effected in the ordinary course of Your business at full market value; and
(b)any such sale shall be a sale of Our property on Your own behalf and You shall deal as principal when making such a sale.
7.5 We shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Us.
7.6 You grant Us, Our agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, if before title to the Goods passes to You and You become subject to any of the events listed in clause 8.2 or We reasonably believe that any such event is about to happen and notify You accordingly, then, provided the Goods have not been resold, and without li miting any other right or remedy We may have We or Our agents and employees may at any time require You to deli very up the Goods and, if you fail to do so, enter any of Your premises or premises of any third party where the Goods are stored in order to recover them.
8.CUSTOMER'S INSOLVENCY OR INCAPACITY
8.1 If You become subject to any of the events listed in clause 8.2, or We reasonably believe that You are about to become subject to any of them and notify You accordingly, then, without limi ting any other right or remedy avai lable to Us, We may cancel or suspend all further deliveries under the Contract or under any other contract between us without incurring any liability to You, and all outstanding sums in respect of Goods deli vered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(a)Your suspension, or threatened suspension, of payment of Your debts or are unable to pay Your debts as they fall due or You admit inabili ty 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 have no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
(b)You commence negotiations with all or any class of Your creditors with a view to rescheduling any of Your debts, or make a proposal for or enter into any compromise or arrangement with Your creditors other than (where You are a company) these events take place for the sole purpose of a scheme for Your solvent amalgamation with one or more other companies or Your solvent reconstruction; or
(c)(being an individual) You are the subject of a bankruptcy petition or order; or
(d)any of Your 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 days; or
(e)(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; or
(f)(being a company) a floating charge holder over Your assets becomes entitled to appoint or has appointed an administrative receiver; or
(g)a person becomes entitled to appoint a receiver over Your assets or a receiver is appointed over Your assets; or
(h)any event occurs, or proceeding is taken, in relation to You in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(g) (inclusi ve); or
(i)You suspend, threaten to suspend, cease or threaten to cease to carry on all or substantially the whole of Your business; or
(j)(being an individual) You die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing Your own affairs or You become a patient under any mental health legislation.
9.1 The price for the Goods or Services shall be the price set out in the order, or if no price is quoted, the price for the Goods and Services shall be the price set out in Our price list published on the date of delivery or deemed deli very.
9.2 The price for the Goods and Services shall be exclusive of any value added tax and all costs or charges in relation to packing, loading, unloading, carriage, import or export duties, and insurance all of which amounts You wi ll pay in addition when You are due to pay for the Goods.
9.3 We may, by giving You notice at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a)any factor beyond Our control (including foreign exchange fluctuations, increases in taxes and duties, and increases
in labour, materials and other manufacturing costs);
(b)any request by You to change the deli very date(s), quantities or types of Goods ordered, or the where relevant, the specification; or
(c)any delay caused by Your instructions or failure to give Us adequate or accurate information or instructions.
9.4 We may invoice You for the Goods or Ser vices on or at anytime after the Goods are deli vered or deemed to be delivered or the Ser vices are supplied.
10.1 Unless other wise agreed in writing, payment of the price for the Goods and Ser vices is due in pounds ster ling on the earlier of 30 days from the date of Our invoice or on the last working day of the month following the month in which the Goods are deli vered
or deemed to be deli vered or the Services are supplied.
10.2 Ti me for payment shall be of the essence.
10.3 No pay ment shall be deemed to have been received unti l We have received cleared funds.
10.4 All payments payable to Us under the Contract shall become due immediately upon termination of this Contract despite any other provision.
10.5 You wi ll make all payments due under the Contract in full wi thout any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless You have a valid court order requiring an amount equal to such deduction to be paid by Us to You. We may at any time, without li miting any other right or remedies We may have, set off any amount owed to You against any amount payable by You.
10.6 If you fail to pay Us any sum due pursuant to the Contract You wi ll be liable to pay interest to Us on such sum from the due date for payment at the annual rate of 4% above the base lending rate from ti me to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. You will pay interest together with the overdue amount.
10.7 We may invoice You for the Goods on or at ant time after the completion of deli very.
11.1 We are not the manufacturer of the Goods, but wi ll endeavour to transfer to You the benefit of any warranty or guarantee gi ven to Us by the manufacturer and to the extent that this is not possible or if We alter the Goods in accordance with Your specification We will provide You wi th the warranty in clause 11.2. For the avoidance of doubt, the warranty in clause 11.2 wi ll not apply if We transfer the benefit of the manufacturer's guarantee to You.
11.2 No liabili ty can be accepted for any failure of the Goods to perform according to any performance figures given. Subject thereto, and to clauses 11.1, 11.7, 11.8, and 11.9. We warrant that (subject to the other provisions of these conditions) upon deli very and
for a period of 6 months from the date of delivery, the Goods will:
(a)be of satisfactory quality wi thin the meaning of the Sale of Goods Act 1979; (b)be free from material defects in design, material and workmanship;
(c)confirm in all material respective with their description.
(d)subject at all times to clause 11.5, be reasonably fit for any particular purpose for which the Goods are being bought if you had made known that purpose to us in writing and we have confirmed in writing that it is reasonable for you to
rely on our skill and judgement.
11.3 We will not be liable for a breach of the warranties in condition 11.2 unless:
(a)You gi ve Us written notice of the defect, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when You discover or ought to have discovered the defect; and
(b)We are given a reasonable opportunity after receiving the notice of examining such Goods and You (if asked to do so by Us) return such Goods to Our works at Our cost for the examination to take place there.
11.4 We will not be liable for a breach of the warranties in condition 11.2 if:
(a)You make any further use of such Goods after gi ving such notice; or
(b)any fault is due to:
(I)any specification or any materials You supply to Us; or
(II)Your instructions in relation to the processes to be applied to the Goods; (III)your choice of components for the Goods.
(c)any damage or fault due to Your assembly or incorporation of the Goods any other products or is as a result of your choice of components for the Goods.
(d)the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(e)You alter or repair such Goods without Our written consent.
11.5 Subject to conditions 11.1, 11.3 and 11.4, if any of the Goods do not conform with the warranties in condition 11.2 we wi ll at Our option repair or replace such Goods (or the defecti ve part) or refund the price of such Goods at the pro rata Contract rate provided that, if we so request, You will, at Our expense, return the Goods or the part of such Goods which is defective to Us.
11.6 If We comply with condition 11.5 We shall have no further liabili ty for a breach of the warranties in condition 11.2 in respect of such Goods.
11.7 We warrant that any Services We provide wi ll be provi ded using reasonable skill and care and, subject to clause 3.4, shall be in accordance with the specification You provide in all material respects.
11.8 We shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by You.
11.9 We shall be under no liabili ty under the warranties in condition 11.2 (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
11.10 Any claim under the warranties in condition 11.2 must be made in writing and the Goods in question must be returned to Us within 6 months of the date of deli very, suitably packaged, carriage paid and accompanied by proof of purchase and detai ls of the nature of the alleged defect. We shall be under no liability under the warranties in condition 11.2 if these conditions are not complied with.
12.LIMITATION OF LIABILITY
12.1 Subject to condition 12.3, the following provisions set out Our entire financial liabili ty (including any liabili ty for the acts or omissions of Our employees, agents and sub-contractors) to You in respect of:
(a)any breach of these conditions;
(b)any representation, statement or tor tious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these condi tions excludes or li mits Our liability for death or personal injury caused by Our negligence, fraud or fraudulent misrepresentation or any other matter for which it would be unlawful for Us to exclude or restrict liability.
12.4 You are responsible for carrying out such tests and examinations as are sufficiently prudent and effective to deter mine that the other product sold in conjunction with or incorporating any Goods are safe and free from defects. We shall not be liable for any death, injury, loss or damage to property or any other damage, charges and/or expenses ("Loss") arising as a result of Your sale or supply or the sale or supply by any third party of any product in conjunction wi th or incorporating any Goods, except to the extent that such Loss arises as a result of Our negligence or breach of its statutory obligations.
12.5 No liabili ty can be accepted for any advice given by or for the quali ty of Services rendered by any of Our sub-contractors unless We have Ourselves confirmed that advice on the quality of those Ser vices in writing.
12.6 Subject to conditions 12.2 and 12.3:
(a)Our total liabi lity in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or other wise, arising in connection with the performance or contemplated performance of this Contract and in the supply of Services to You shall be limi ted to [the lower of £100,000 or 100% of the price of the Goods or Services]; and
(b)We shall not be liable to You, whether in contract, tort (including negligence) breach of statutory duty or otherwise, for any pure economic loss of profit, loss of business, depletion of goodwi ll or any indirect or consequential loss, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
We reserve the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by You (without liability to You) if We are prevented from or delayed in the carrying on of Our business due to circumstances beyond Our reasonable control of including, wi thout li mitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes ( whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
14.1Each right or remedy of Ours under the Contract is without prejudice to any other right or remedy of Ours whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegali ty, invalidity, voidness, voidabi lity, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 If any If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply wi th the mini mum modification necessary to make it legal, valid and enforceable.
14.4 Failure or delay by Us in enforcing or partially enforcing any provision of the Contract will not be construed as a wai ver of any of Our rights under the Contract.
14.5 A wai ver of any right or remedy under the Contract is only effective if in writing and shall not be deemed to be a wai ver of any subsequent breach or default. Any wai ver by Us of any breach of, or any default under, any provision of the Contract by You will not be deemed a wai ver of any subsequent breach or default and wi ll in no way affect the other terms of the Contract.
14.6 The parties to this Contract do not intend that any term of this Contract wi ll be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exc lusive jurisdiction of the English courts.
14.8 We may at any time assign, transfer, charge, subcontract or deal in any other manner wi th all or any of its rights or obligations under the Contract. You may not assign, transfer, charge, subcontract or deal in any other manner with all or any of Your rights or obligations under the Contract wi thout Our prior written consent.
15.1 All communications between the parties about thi s Contract must be in writing and deli vered by hand or sent by pre-paid first class post or sent by facsimile transmission:
(a)(in case of communications to Us) to our registered office or such changed address as shall be notified to You by Us;
(b)(in the case of the communications to You) to Your registered office (if a company) or (in any other case) to Your address set out in any document which forms part of this Contract or such other address as shall be notified to Us by You.
15.2 Communications shall be deemed to have been received:
(a)if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting
(exclusi ve of the day of posting);
(b)if delivered by hand, on the day of delivery;
(c)if sent by facsimile transmission on a working day prior to 4.00 pm, at the ti me of transmission and other wise on the next working day.
15.3 Communications addressed to Us shall be marked for the attention of the Managing Director.
15.4 The provisions of this clause shall not apply to the ser vice of any proceedings or other documents in any legal action.