TERMS & CONDITIONS OF BUSINESS
1.1 The definitions and rules of interpretation in this Condition 1 apply in these Conditions.
Acknowledgement: the acceptance and acknowledgement of acceptance by the Company of any offer from the Customer for the Supplies as provided for in Condition 2.3 and 2.5 (as the case may be).
Company Product: a product supplied by the Company to the Customer under the Contract.
Company: ACtronics Limited, a company incorporated in England and Wales with company number 07051466 whose registered office is at Unit 5, The Point, De Grey Road, Colchester, Essex CO4 5YQ.
Conditions: these terms and conditions.
Contract: the Contract between the Company and the Customer for the sale and purchase of the Supplies.
Customer: any person who purchases Supplies from the Company.
Delivery Point: as defined in Condition 8.1.
Original Product: a product supplied by the Customer to the Company for repair or replacement.
Parties: the Company and the Customer.
Products: the Company Product, Swap Product and Repaired Product or any of them
(as the case may be).
Repaired Product: an Original Product repaired by the Company, by provision of Services under the Contract.
Supplies: the Products and/or the Services provided by the Company to the Customer under the Contract, or any of them (as the case may be).
Swap Product: any product from the Company’s designated component stock, as notified by the Company from time to time, used to replace an Original Product.
Third Party Claim: any claim made, or action or proceedings brought, by a person who is not a party to this Contract.
Services: the services to be provided by the Company under the Contract, together with any other services which the Company provides, or agrees to provide, to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Warranties: the warranties set out in Condition 10.1.
1.2 A reference to a particular law is a reference to it as it is in force for the time being, as amended from time to time.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Words in the singular include the plural and vice versa.
1.5 References to Conditions are to these Conditions.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall, unless otherwise agreed between the Parties
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing; and
2.1.3 apply to every offer, quote, agreement or contract for the sale of Supplies.
2.2 The Customer's purchase order, or the Customer's acceptance of a quotation for the sale of the Supplies by the Company shall constitute an offer by the Customer to purchase the Supplies, on and subject to these Conditions.
2.3 Subject to Conditions 2.5 and 4.6, no offer placed by the Customer shall be accepted by the Company other than by oral acceptance issued by an authorised employee of the Company in a telephone call with the Customer (Acknowledgement).
2.4 The Company shall inform the Customer as soon as reasonably practical after rejecting an offer from the Customer.
2.5 Where a Customer offers an Original Product for repair, the offer shall not be accepted (or deemed accepted) by the Company until the Company has received and inspected the Original Product and accepted the Customer’s offer in a subsequent authorised telephone call with the Customer (Acknowledgement).
2.6 The Customer shall ensure that the terms of its order and any applicable specifications are complete and accurate.
2.7 Any quotation given by the Company shall be on the basis that no Contract shall come into existence except in accordance with these Conditions. Any quotation so given shall be valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Products shall be as set out in the Company's quotation or as otherwise agreed by the Parties.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues, brochures, website or other promotional material are published for the sole purpose of giving an approximate idea or price estimate of the Products described therein, and shall not form part of the Contract. The Contract shall not be a sale by sample.
4 CUSTOMER’S OBLIGATIONS
4.1 The Customer shall provide to the Company such information as the Company may reasonably require to assist the Company in providing the Supplies.
4.2 Upon delivery to it, the Customer must examine the Supplies to establish whether they meet the requirements agreed in the Contract. The Customer must inform the Company in writing within seven days of delivery of the Supplies if it is dissatisfied. Failure to do so shall constitute the Customer’s acceptance of the Supplies.
4.3 The Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s delay in, or prevention of, providing the Supplies if such delay or prevention is due to any act or omission of the Customer, its agents, subcontractors, consultants or employees.
4.4 The Customer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s or its agents’, sub-contractors’, consultants’ or employees’ fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract.
4.5 The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of six months after the last date of provision of the Supplies, solicit or entice away from the Company or employ (or attempt to employ) any person who is, or has been, engaged as an employee of the Company.
4.6 If an Original Product is offered to the Company for repair and after inspection the Company finds no error or defect in the Original Product, the Customer shall be liable to pay to the Company an administration, handling and testing charge of £35 (plus VAT).
4.7 The Customer understands and accepts that, whilst the Company will use its reasonable endeavours to supply a suitable Product, it shall be the Customer’s duty and responsibility to inspect, and properly and fully test the Products both before and after fitting them to any vehicles to ensure they are in full working order and compatible with the vehicle.
5 COMPANY’S OBLIGATIONS
5.1 The Company shall use its reasonable endeavours to provide the Supplies to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for delivery of the Supplies.
5.2 The Company may deliver Supplies by separate instalments, in which event each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract, and each instalment shall be a separate Contract and no cancellation or termination of any one Contract shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5.3 Subject to Condition 8.1:
5.3.1 the Customer shall be responsible for delivering Original Products to the Company; and
5.3.2 the Company shall be responsible for arranging delivery of the Products to the Customer’s place of business.
5.4 The Company shall not be liable for any additional cost to the Customer of alternative transportation of the Products to the Customer.
6 NON-DELIVERY OF PRODUCTS
6.1 The quantity of any consignment of Products as recorded by the Company on despatch from the Company’s premises shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer provides conclusive evidence proving the contrary.
6.2 The Company shall not be liable for any non-delivery of Products unless the Customer gives written notice to the Company of the non-delivery within 14 days of the date when the Products would in the ordinary course of events have been received.
7 USE OF PRODUCTS
The Customer must use the Products according to the nature or purpose for which they are intended and in compliance with all legal requirements and other instructions prescribed by the Company or manufacturer of any such Products. The assembly and dismantling of any Products must be carried out by qualified personnel in accordance with the instructions. The Company shall not be responsible for any damages or losses that occur to the Customer (or its agents, sub-contractors, consultants or employees) if the Customer fits (or attempts to fit) or uses (or attempts to use) the Product improperly.
8.1 The Product shall be at the Customer’s risk from the point of delivery (Delivery Point). The Delivery Point shall be the point at which the Product has been loaded
on to the means of transportation from the Company to the Customer. The Customer should obtain insurance in respect of transportation and delivery of the Products.
8.2 If, for any reason, the Customer fails to accept delivery of any Products, or the Company is unable to deliver the Products to the Customer’s premises because the
Customer has not provided appropriate instructions, documents, licences or authorisations:
8.2.1 such Products shall be deemed to have been delivered in any event; and
8.2.2 the Company may store such Products, whereupon the Customer shall be
liable for all related costs and expenses (including, without limitation, storage
8.3 Ownership of the Products shall not pass to the Customer until the Company has
received in full (in cash or cleared funds) all sums due to it in respect of:
8.3.1 the Products; and
8.3.2 all other sums which are or which become due to the Company from the Customer on any account.
8.4 Until ownership of the Products has passed to the Customer, the Customer shall:
8.4.1 hold the Products on a fiduciary basis as the Company's bailee;
8.4.2 store the Products (at no cost to the Company) separately from all other goods
of the Customer or any third party in such a way that they remain readily
identifiable as the Company's property;
8.4.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
8.4.4 maintain the Products in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company; and
8.4.5 not create any charge or encumbrance over, or attempt to transfer ownership
of, any Products.
8.5 The Customer’s right to possession of the Products shall terminate immediately in the event of a breach of clause 8.4.
8.6 The Customer may resell the Products before ownership has passed to it provided that any sale shall be effected in the ordinary course of the Customer's business at full
market value, and any such sale shall be a sale of the Company's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale.
8.7 The Company shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Company.
8.8 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to
inspect them, or, where the Customer 's right to possession has terminated, to recover them.
8.9 Where the Company is unable to determine whether any Products are the products in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all products of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
9.1 The price for the Supplies shall be agreed during and by way of Acknowledgment, and shall be payable in pounds sterling, exclusive of VAT and delivery charges.
9.2 All prices and charges listed on the Company’s website and in the Company’s catalogues, brochures and promotional material shall be subject to change without notice but no change will be made to prices and charges agreed in any Contract.
9.3 The Company shall invoice the Customer on delivery of the Products, and time for payment of the invoice shall be of the essence. Payment of all invoices shall be in cash.
9.4 No payment by the Customer shall be deemed to have been received by the Company until the Company has received cleared funds.
9.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
9.6 If payment is not made within 14 days of delivery of the invoice:
9.6.1 the Customer shall be liable for:
126.96.36.199 administration costs of an amount not exceeding 3% of the relevant
188.8.131.52 all costs incurred by the Company in collecting any payments due under the Contract;
184.108.40.206 interest on such outstanding sum from the due date for payment, at the annual rate of 2% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis (whether before or after any judgment) until payment is made in full; and
9.6.2 the Company may suspend the Contract and any related agreements until payment has been made in full.
9.7 All sums payable to the Company under the Contract shall become due immediately on termination of the Contract.
9.8 Where the Company provides a Swap Product, the Company shall refund to the Customer the sum of £100 of the relevant invoice price in respect of such Swap Product PROVIDED THAT the Company receives from the Customer the Original Product (in respect of which the Swap Product replaces):
9.8.1 with unopened casing and without any signs of damage (including, but not limited to, damage caused by drilling, grinding or sawing) and otherwise in such condition as shall be reasonable acceptable to the Company; and
9.8.2 within 3 months of delivery of the Swap Product by the Company to the Customer.
10.1 The Company warrants to the Customer that:
10.1.1 The Services shall be performed with reasonable skill and care; and
10.1.2 the Products shall, for the warranty period set out in Condition 10.2
(Warranty Period), be:
10.1.2.1 of satisfactory quality within the meaning of the Sale of Goods
Act 1979; and
10.1.2.2 reasonably fit for purpose.
10.2 The Warranty Period shall be as follows:
10.2.1 a period of one year following delivery to the Customer, in respect of air mass meters; and
10.2.2 a period of two years following delivery to the Customer, in respect of all other Products.
10.3The Company shall not be liable for a breach of any of the Warranties:
10.3.1 unless the Customer gives written notice to the Company of the defect giving rise to the breach of Warranty (Breach Notice) within seven days of the Customer discovering or ought to have discovered the defect; and
10.3.2 unless the Company is given a reasonable opportunity after receiving the Breach Notice to examine such Products and the Customer shall (upon
Company’s request and at Company’s expense) return such Products to the Company for examination and inspection;
10.3.3 if the Customer makes any further use of the defective Products after giving a Breach Notice; or
10.3.4 if defect arises because the Customer failed to follow the Company's or manufacturer’s instructions as to the storage, installation, commissioning, use or maintenance of the Products, or good trade practice; or
10.3.5 if the Customer alters or repairs such Products without the written consent of the Company.
10.4 Subject to Condition 10.3, if any of the Supplies do not conform with any of the Warranties, the Company shall at its option either:
10.4.1 repair or replace such Supplies; or
10.4.2 refund the price of such Supplies at the pro rata Contract rate; PROVIDED THAT if the Company so requests, the Customer shall, at the Company's expense, return to the Company the Products (or the part of such Products) which is defective.
10.5 If the Company complies with Condition 10.4, it shall have no further liability for a breach of any of the Warranties.
10.6 Any Supplies replaced shall be subject to the Warranties for the unexpired portion of the relevant warranty period set out in Condition 10.2 (as applied to the defective Product).
10.7 If the Customer for any reason does not wish to purchase any of the Products supplied, the Customer may (at the Customer’s expense) return the Products to the Company within seven working days after the delivery PROVIDED THAT the returned Products are, in the reasonable opinion of the Company, undamaged. The Customer shall, in addition, be liable to the Company for such amount as the Company may reasonably require to reimburse administration costs and the cost of handling and testing the returned Product.
Save as may be required by law the Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company, its employees, agents, consultants or subcontractors and any other confidential information concerning the Company's business or its products which the Customer may obtain.
12 LIMITATION OF LIABILITY
CUSTOMER ATTENTION DRAWN TO THIS CONDITION
12.1 Save in respect of death or personal injury, and subject to Condition 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
12.1.1 any breach of these Conditions, including any deliberate personal repudiatory breach or any deliberate breach of these Conditions by the
Company, or its employees, agents or subcontractors;
12.1.2 any use made or resale by the Customer of any of the Products, or of any product incorporating any of the Products; and
12.1.3 any representation, statement or tortious 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 Subject to Conditions 10, 12.1 and 12.2:
12.3.1 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the sums actually received by the Company from the Customer (in cleared funds) under the Contract; and
12.3.2 the Company shall not be liable for:
220.127.116.11 loss of profits; or
18.104.22.168 loss of business; or
22.214.171.124 depletion of goodwill and/or similar losses; or
126.96.36.199 loss of anticipated savings; or
188.8.131.52 loss of goods; or
184.108.40.206 loss of contract; or
220.127.116.11 loss of use; or
18.104.22.168 loss of corruption of data or information; or
22.214.171.124 any special, indirect, consequential or pure economic loss,
costs, damages, charges or expenses.
12.4 The Company shall not be liable in damages for any loss or damage suffered by the Customer for late delivery of Products.
13 CONDUCT OF THIRD PARTY CLAIMS
13.1 The Customer shall, within seven days of becoming aware, inform the Company in writing of any claim by any third party (Third Party Claim), whereby it appears that the Company is or may become liable under any Third Party Claim. The Customer shall not make any settlement or compromise of any Third Party Claim, nor agree to any matter in the conduct of such proceedings without the prior written approval of the Company.
13.2 The Customer shall take such action and give such information and assistance as the Company may reasonably request to avoid, dispute, resist, mitigate, compromise or defend any Third Party Claim and to appeal against any judgment given in respect thereof.
13.3 The sole conduct of any legal proceedings of whatsoever nature arising out of any Third Party Claim shall, if so requested by the Company, be delegated to the Company.
14 DATA PROTECTION
The Customer acknowledges and agrees that details of the Customer's name, address and personal data will be processed by and on behalf of the Company.
15.1 Without prejudice to any other rights or remedies which the Company may have, all outstanding invoices of the Company to the Customer shall become immediately due
and payable and the Company may terminate the Contract immediately without liability on giving notice to the Customer if the Customer:
15.1.1 fails to pay any amount due under the Contract within fourteen days of its due date; or
15.1.2 commits a material breach of any of the terms of the Contract; or
15.1.3 suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; or commences negotiations or enters into an
arrangement with creditors with a view to rescheduling any of its debts; or is subject to winding-up or liquidation proceedings; or is subject to the
appointment of an administrator or administrative receiver; or
15.1.4 suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
15.2 On termination of the Contract for any reason:
15.2.1 the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest if any and, in respect of Supplies provided but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
15.2.2 the following Conditions shall survive and continue in full force and effect:
i. Condition 11;
ii. Condition 12;
iii. Condition 13
iv. Condition 15; and
v. Condition 17.4.
16 FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Products ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, 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.
17.1 The Company may, from time to time and without notice, change the Supplies in order to comply with any applicable safety or statutory requirements, provided that any such change does not materially affect the nature, scope of, or the charges for the Supplies. If the Company requests a change to the scope of the Supplies for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
17.2 Subject to condition 17.1, no variation of the Contract or these Conditions or shall be valid unless it is agreed by or on behalf of each of the parties.
17.3 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by the Company in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
17.4 If a provision of these Conditions or the Contract (or part of any such provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
17.5 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements, arrangements or undertakings (whether written or oral) between the parties relating to its subject matter.
17.6 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract, as provided in the Contract.
17.7 Nothing in these Conditions shall limit or exclude any liability for fraud.
17.8 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the Contract.
17.9 The Company may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
17.10 Each of the Company and the Customer is acting on its own behalf and not for the benefit of another person.
17.11 A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.12 Save as otherwise provided in these Conditions, any notice required to be given under the Contract shall:
17.12.1 be in writing and shall be delivered personally, or sent by pre-paid firstclass post, recorded delivery or by commercial courier to the other party, or as otherwise specified by the relevant party by notice in writing to the other party;
17.12.2 be deemed to have been duly received if delivered personally, when left at the address or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed;
17.12.3 not be validly served if sent by e-mail.
17.13 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 English law and the parties shall submit to the exclusive jurisdiction of the courts of England.
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