Terms And Conditions
In these conditions the following words shall have the following meanings:
“Buyer” means the person or company who accepts a quotation of the Seller for the Goods or whose order for the Goods is acceptable by the Seller.
“Conditions” means the conditions of sale set out below.
“Contract” means the contract for the purchase and sale of the Goods in accordance with these Conditions.
“Delivery” means delivery of the Goods in accordance with clause 8
“Goods” means the goods (or any part of them) which the Seller is to supply pursuant to an Order.
“Order” means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form or the Buyer’s written or oral acceptance of the Seller’s quotation, as the case may be.
“Seller” means Ablebox Ltd registered in England and Wales with company registration number 02547129.
- These Conditions shall govern the Contract to the exclusion of any other terms and conditions. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.
- The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted by the Seller when the Seller either (a) issues a written acceptance of the Order; (b) confirms acceptance of the Order verbally; or (c) (if later) Goods are delivered, at which point the Contract shall come into existence. No Order which has been accepted by the Seller can be cancelled by the Buyer except with the agreement in writing of the Seller.
- A quotation for the Goods given by the Seller shall not constitute an offer. Quotations are subject to withdrawal at any time before receipt of an unqualified order from the Buyer which is accepted by the Seller in accordance with clause 2.
- The price of the Goods shall be the price set in the Order, or, if no price is quoted, the price shall be calculated in accordance with the Seller’s scale of charges in force at the date of delivery. The Seller may, by giving notice to the Buyer at any time before Delivery, increase the price of the Goods to reflect any increase in the costs of the Goods that is due to: any factor beyond the Supplier’s control (including foreign exchange fluctuations, increase in taxes and duties, and increases in labour, materials and other manufacturing costs); any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
- The price of the Goods is exclusive of amounts in respect of value added tax (VAT) which the Buyer shall additionally be liable to pay at the prevailing rate, subject to the receipt of a valid VAT invoice.
- The Seller shall invoice the Buyer for the price of the Goods on or at any time after Delivery. If the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take Delivery of the Goods then the Seller shall be entitled to invoice the Buyer for the price at any time after either; (a) the Seller has notified the Buyer that the Goods are ready for collection; or (b) the Seller has tendered delivery of the Goods.
- The Buyer shall pay the price of the Goods in full and in cleared funds within one month of Delivery notwithstanding that property in the Goods has not passed to the Buyer. The time for payment of the price of the Goods shall be of the essence of the Contract. If the Buyer fails to make any payment on the due date then (in addition to any other right or remedy available to the Seller) (a) the Seller shall be entitled to; (i) cancel any other contract or suspend any further deliveries to the Buyer; and (ii) charge interest on the outstanding amount daily at the rate of 5% per annum over base rate from time to time, such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount whether before or after judgement; and (b) any outstanding invoices on any other contract (whether or not such invoices would otherwise have fallen due) shall become immediately payable and interest shall run (at the above rate both before and after judgement) notwithstanding that the month has not yet elapsed.
- An Order shall specify whether the Goods are to be: (a) delivered by the Seller, or by a carrier appointed by the Seller, to the address for delivery of the Goods specified in the Order (the Location); or (b) made available for collection by the Buyer at the Seller’s, or carrier’s, premises set out in the Order (as the case may be). If clause 8(b) applies, the Buyer shall collect the Goods within the period specified in the Order.
- The Goods shall be deemed delivered: (a) if delivered by the Seller under clause 8(a), on arrival of the Goods at the Location; (b) if delivered by a carrier under clause 8(a), on delivery of the Goods by the Seller to the carrier; or (c) if collected by the Buyer under clause 8(b), when the Seller makes the Goods available for collection at the Seller’s, or carrier’s, premises (as the case may be).
- If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
- Time for Delivery shall not be of the essence. Any dates for Delivery of the Goods are approximate only and the Seller shall not be liable for any reasonable delay in Delivery. Quantities delivered are subject to a fluctuation of 10% from that ordered due to the manufacturing process. The Buyer shall not be entitled to reject the Goods if the Supplier delivers up to and including 10% more or less than the quantity of the Goods ordered, unless agreed otherwise in advance, but a pro rata adjustment shall be made to the Order invoice.
- The Seller may deliver the Goods by instalments. Each instalment shall constitute a separate Contract. Any delay in Delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
- If the Buyer fails to take Delivery of the Goods or fails to take or to give the Seller adequate delivery instructions at the time stated for Delivery then (a) delivery will be deemed to have been completed at 9.00am on the second day after the day on which the Seller notified the Buyer that the Goods were ready for delivery; and (b) (in addition to any right or remedy available to the Seller) (i) the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and invoice that cost either separately from or together with the cost of the Goods themselves; and/or (ii) the Supplier may resell or otherwise dispose of the Goods.
- Risk of loss or damage in the case of the Goods to be delivered at the Seller’s premises pursuant to clause 8(b) shall pass to the Buyer at the time when the Seller notifies the Buyer that the Goods are available for collection (whether or not they are to be stored for the Buyer by the Seller). In the case of the Goods to be delivered pursuant to clause 8(a) risk of loss or damage shall pass at the time the Goods are dispatched from the Seller’s premises.
- Title to the Goods shall not pass to the Buyer until the earlier of: (a) the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and (b) the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 17.
- Until title to the Goods has passed to the Buyer, the Buyer shall: (a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Seller immediately if it becomes subject to any of the events listed in clause 29; and (e) give the Seller such information relating to the Goods as the Seller may require from time to time.
- Subject to clause 18, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time: (a) it does so as principal and not as the Seller’s agent; and (b) title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
- If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 29, then, without limiting any other right or remedy the Seller may have: (a) the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and (b) the Seller may at any time: (i) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and (ii) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
- The Seller shall be entitled to maintain an action for the price of any invoice notwithstanding that title has not passed to the Buyer.
- The Seller warrants that on Delivery, the Goods shall conform in all material respects with their description and be free from material defects in design, material and workmanship.
- Subject to clause 22, if: (a) the Buyer gives notice in writing to the Seller within 7 days of delivery that some or all of the Goods do not comply with the warranty set out in clause 20; (b) the Seller is given a reasonable opportunity of examining such Goods; and (c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- The Seller shall not be liable for Goods’ failure to comply with the warranty set out in this clause 20 if: (a) the Buyer makes any further use of such Goods after notice has been given in accordance with clause 21; (b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practise regarding the same; (c) the Buyer alters or repairs such Goods without the written consent of the Seller; (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (e) the Goods differ from their description as a result of changes made to ensure they comply with applicable or regulatory requirements.
- The Seller shall not be liable where; (a) error is due to inaccurate or imprecise instructions by the Buyer; or (b) any late delivery has been caused by an inability of the Seller to procure materials or articles required for the performance of the Contract; or (c) where the Seller has not been notified of defects which would be revealed by normal examination, within the 7 day period referred to in clause 21.
- At the sole discretion of the Seller materials of not less strength than those ordered may be substituted for quoted materials. The Buyer shall not be entitled to reject the Goods or cancel the Contract if materials are substituted in accordance with this clause.
- Except as provided in clauses 21 to 24 (inclusive), the Seller shall have no liability to the Buyer in respect of the Goods failure to comply with the warranty set out in clause 20. These Conditions shall apply to any repaired or replacement Goods supplied by the Seller. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- The Seller shall not be liable to the Buyer 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 Sellers obligations in relation to the Goods if the delay or failure was due to any cause beyond the Sellers reasonable control.
- Nothing in these Conditions shall limit or exclude the Seller’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (c) defective products under the Consumer Protection Act 1987; or (d) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
- Subject to clause 27, (a) the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and (b) the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
- If (a) the Buyer make a voluntary arrangement with its creditors or becomes subject to an administration order or (being an individuals or firm) become bankrupt or (being a company) goes into liquidation (other than for the purpose of amalgamation or reconstruction); or (b) a receiver is appointed of any of the property or assets of the Buyer; or (c) the Seller reasonably apprehends that any of the events mentioned is about to occur then in addition to any other right or remedy the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract, without incurring any liability to the Buyer, and all outstanding sums in respect of the Goods delivered to the Buyer (together with any interest) shall become due immediately. Termination of the Contract, howsoever 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.
- The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- A person who is not a party to the Contract shall not have any rights to enforce its terms. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Seller.
- This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Buyer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. The Buyer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).