In these Conditions of Sale, the "Company" means AVW Fabrications Limited; the "goods" means any item of whatsoever nature which is to be sold or supplied by the Company including services; the "Purchaser" means the person, firm or body corporate which buys or has agreed to buy the goods.
These Conditions of Sale shall apply to and form part of every contract of sale entered into by the Company. All orders are accepted and executed on the understanding that the Purchaser is bound by these Conditions of Sale which shall govern the contract to the exclusion of any other terms and conditions subject to which any such order is accepted or purported to be accepted, or any such order is made or purported to be made, by the Purchaser.
No contract of sale shall come into being unless and until the Purchaser has accepted these Conditions of Sale either expressly or by implication.
Limits of Contract
The contract includes only such goods, accessories and work as are specified in the quotation or acknowledgement accompanying these Conditions of Sale.
The Goods are manufactured according to the specifications provided unless otherwise agreed upon in writing. The Company reserves the right to make any changes to the specification furnished by the Purchaser which are required to conform to any applicable statutory requirements. The Company does not assume responsibility for Goods manufactured, priced or delivered not in accordance with the agreed upon order or the specifications, unless the Purchaser’s order and specifications are clear and correct in every particular.
Where approval of drawings and specifications is required, a copy of the final layout drawings will be forwarded to the Purchaser prior to manufacture and any alterations required must be clearly indicated and advised to the Company within the timescale provided.
Written quotations are valid for thirty (30) days from the date of the quotation unless otherwise stated by the Company in the quotation or terminated sooner by written notice. Verbal quotations, unless accepted, expire the same day they are made. A complete signed order, including all specifications and documentation to perform the work, must be received by the Company within ten (10) calendar days of notification of acceptance of quotation, otherwise the Company reserves the right to amend the delivery date and quotation price to cover any increase in costs which the Company may incur after acceptance.
Any contract shall be subject to the Company being satisfied as to the Purchaser's credit references, and without prejudice to the generality of the foregoing, the Company may (in its absolute discretion), having informed the Purchaser that the goods are ready for despatch, refrain from delivering the goods until such time as the Purchaser tenders the purchase money to the Company together with any outstanding amounts which may be due to the Company on any account whatsoever.
The price payable for goods shall, unless otherwise stated by the Company in writing, be the list price of the Company current at the date of despatch and in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of despatch of such instalment.
Unless otherwise expressly stated to be firm for a period the Company's prices are subject to variation to take account of , without limitation, variations in labour costs, materials and other costs of manufacture. The Company accordingly reserves the right by giving notice to the Purchaser at any time before delivery to increase the price of the goods by the amount of any increase in such costs after the price is quoted.
All prices are exclusive of Value Added Tax and this will be charged at the applicable rate and recoverable by the Company in addition to the price. All invoiced price discrepancies must be notified by the Purchaser to the Company within 14 working days of the date of invoice.
Unless otherwise agreed in writing payment is due without deduction on or before the last working day of the month following the date of the invoice.
Where the contract provides for delivery in instalments each instalment shall be considered as a separate contract of sale. Time for payment shall be of the essence of the contract.
Without prejudice to any other rights it may have the Company is entitled to charge interest at 8% above the current Bank of England base rate or such other rate of interest as shall be determined under the Late Payment of Commercial Debts (Interest) Act 1998 on any overdue payments. Additionally and without prejudice to its other rights the Company shall be entitled to recover all direct expenses reasonably incurred by the Company in collecting or attempting to collect amounts of the price outstanding.
If the Purchaser fails to make any payment when due in accordance with these Conditions of Sale, the Company reserves the right in its absolute discretion and without prejudice to any of its other rights or remedies to suspend all further deliveries until such payment has been made in full together with any other amounts owing to the Company whether the due date for payment has been reached or not, if so requested by the Company or, at the Company's option, to cancel the balance of the order. In either case the Company shall hold the Purchaser liable for costs incurred in respect of goods in course of manufacture or ready for despatch.
The Company shall be entitled to bring an action for the price or part thereof whether or not the property in the goods has passed.
Inspection and Tests
The Company's products are carefully inspected. If special tests or inspections other than those specified or inspections or tests in the presence of the Purchaser or its representatives are required, unless otherwise agreed, these will be charged for. In the event of any delay on the Purchaser's part in attending inspections or tests after the Purchaser has received 3 days' notice that the Company is ready to perform the inspections or tests, the inspections or tests will proceed in the Purchaser's absence and the Purchaser accordingly hereby agrees to accept and pay for such inspections or tests as if they had been performed in the Purchaser's presence. All inspections or tests must be made at the Company’s premises.
The cost of delivery of the goods to the Purchaser’s premises on the mainland of Great Britain shall not be included in the quotation unless otherwise stated.
Where carriage has been included, unless accepted by the Company in writing all times or dates for delivery of the goods are given in good faith but are approximate only and shall not be of the essence of the contract.
All times or dates for delivery shall be calculated from the date of acceptance by the Company of the order of the Purchaser, or from the date of receipt by the Company from the Purchaser of all information, instructions and drawings as shall be necessary to enable the Company to carry out the order, whichever shall be the later.
Unless otherwise stated in writing the Company shall be entitled to make partial deliveries of the goods.
Loss or Damage in Transit
When the price quoted includes delivery, the Company shall repair or replace free of charge goods damaged in transit or not delivered in accordance with the Delivery Note provided that the Company is given written notification of such damage or non-delivery within such time (being not more than 3 days) as will enable the Company to comply with the carrier's conditions of carriage as affecting loss or damage in transit, or, where delivery is made by the Company's own transport, within 3 days after receipt of the Delivery Note.
Notwithstanding the above undertaking, the Company will only consider claims for alleged shortage if they are received within 3 working days of the receipt of the goods by the Purchaser together with sufficient information to enable the Company properly to identify the shortage including the Delivery Note number, Job number and date of Delivery.
In the event the Purchaser fails to give notice within the aforementioned period, the Goods will be deemed to be in all respects as invoiced.
Where goods are collected by the Purchaser or the Purchaser's staff or agent no claim for shortage or damage will be considered.
Passing of Property and Risk
Risk of damage to or loss of the goods shall pass to the Purchaser in the case of goods to be delivered otherwise than at the Company's premises, at the time of delivery, or, if the Purchaser wrongfully fails to take delivery of the goods, the time when the Company has tendered delivery of the goods.
Notwithstanding delivery and the passing of risk in the goods, or any other provision of these Conditions the property in the goods shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the Company to the Purchaser for which payment is then due.
Until such time as the property in the goods passes to the Purchaser, the Purchaser shall hold the goods as the Company's fiduciary agent and bailee, and shall keep the goods separate from those of the Purchaser and third parties and properly stored, protected and insured and identified as the Company's property, but shall be entitled to resell or use the goods in the ordinary course of its business.
Until such time as the property in the goods passes to the Purchaser (and provided the goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Purchaser to deliver up the goods to the Company and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the goods are stored and repossess the goods.
The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Company, but if the Purchaser does so all moneys owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
Variations and Suspension
The Company shall be under no obligation to alter or vary any part of the contract or any work connected therewith. Any alteration to or addition to or amendment or other variation of the specification, including any increase or decrease in the quantity of the goods or any alteration to any drawings or to the quality, performance, weight or measurements of any goods or any alteration or variation of advised delivery schedules, shall, if requested by the Purchaser, be subject to the agreement of the Company, with such alteration or addition to the price and to delivery dates or schedules as may be required by the Company, and shall not be binding upon the Company unless and until accepted by the Company in writing.
In the event of any variation or suspension of the work by the Purchaser's instructions or lack of instructions the Company shall be entitled to adjust the contract price to reflect any additional costs incurred, and to adjust delivery dates or schedules.
For any works suspended, held, or rescheduled at the request of the Purchaser, the Company may, at its sole option, require payment to be based on any reasonable basis, including but not limited to the quotation price, and any additional expenses, or cost resulting from such a delay; and if required, store parts at the sole cost and risk of loss to the Purchaser. Payment shall be made to the Company net thirty (30) days from date of invoice. Any works so held, delayed or rescheduled beyond one hundred and eighty (180) days will be treated as a Purchaser cancellation.
Unless otherwise agreed in writing, goods rejected as not complying with the contract must be rejected within 14 days of delivery to the Purchaser’s premises or to such other place as the Purchaser shall have specified.
Goods ordered on a firm order cannot be considered cancelled until written consent has been obtained from the company. Orders for which manufacturing or materials sourcing has already irrevocably commenced will only be accepted for cancellation on terms which will indemnify the Company in full against all losses (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
Should goods be refused at the customer premises claiming that cancellation has been approved, written evidence must be given of the company's consent, or the goods will still be charged and no credit will be issued. Storage charges for non-accepted goods will also be applied.
If the Company does not receive forwarding instructions sufficient to enable it to despatch the goods within 7 days after notification that the goods are ready for delivery or that they have been tested, the Purchaser shall thereupon take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage as aforesaid, the Company shall be entitled to invoice and be paid for the goods as though the goods had been duly delivered in accordance with these Conditions of Sale and the Company may arrange storage either at the Company's own works or elsewhere on the Purchaser's behalf and all charges incurred by the Company as a result of such delay including storage and insurance shall be payable by the Purchaser.
Return of Goods
In no circumstances may goods supplied against a firm order be returned without the Purchaser having first applied for and obtained the written consent of the Company. A handling charge of at least 50%* to recover costs of re-stocking (where applicatble), transport and administration, will be deducted from any credit allowed by the Company where it is established that the reason for the return of goods was not due to any error on the part of the Company.
* The minimum handling charge applicable is £100 even where 25% of the returned goods value is less than this.
Debit notes for return of goods must not be raised or deducted before written consent to return said goods has been obtained from the company. If unauthorised debit notes are raised and monies withheld from payment the company reserves the right to withdraw supply of goods until the debit note is withdrawn and the monies are paid in full.
The company will not collect goods from site. Goods returned by the customer's transport or by third party carrier without the prior written consent of the company will not be credited. No credit will be due for goods lost or disposed of without the company's written consent.
The Company reserves the right to replace products returned as faulty, in place of issuing a credit. In circumstances where items claimed faulty have not been opened, the goods will be returned to the customer and no credit issued.
All faults or defects, whether visual or non-visual, must be notified to the Company in writing within one (1) year of the date of despatch. The Company undertakes to consider any claim and/or examine the Goods or parts alleged to be defective and should any fault due to defective manufacture carried out by the Company be found on such examination, to repair the defective goods or parts, or at the option of the Purchaser, to supply and install free of charge, new Goods or parts to replace them.
The above undertaking is limited to the supply to the Purchaser, free at the Purchaser’s premises, of the new repaired Goods and parts thereof in exchange for any acknowledged by the Company to be defective, and the responsibility for carriage and labour charges incurred in the re-installation of the Goods, or the re-fitting of parts. The decision of the Company on all claims and all questions as to defects and as to the exchange of any Goods or parts shall be final and conclusive.
The warranty given in this clause is subject to the following provisos:
(i) That the Purchaser or any third party has, without the Company’s previous written consent, affected modifications or repairs;
(ii) That the faults or defects were caused by incorrect or negligent handling, installation, disregard of operating instructions, overloading, unsuitable work, or any other default by the Purchaser or any third party;
(iii) That the faults or defects were caused by fair wear and tear, accident or any other matter beyond the Company’s reasonable control, occurring after the date of despatch;
(iv) That any defect in the Goods and/or Services arising from any drawing, design or specification supplied by the Purchaser;
(v) That the parts, materials and goods not manufactured by the Company in respect of which the Purchaser shall only be entitled to the benefit of any such warranty as is given by the manufacturer to the Company;
(vi) That the total price for the Goods and/or Services has not been paid by the due date for payment.
Except in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable whether in contract, tort or otherwise to the Purchaser by reason of any representation (unless fraudulent) or any implied warranty, condition or other term as to quality or fitness for purpose, or any duty at Common Law or under the express terms of the contract, and will bear no liability for any defect save as stated in this Warranty clause. Nor shall the Company bear any liability for any indirect, special, economic or consequential loss or damage (whether for loss of profit, loss of use, loss of production, loss of contract or otherwise) costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with supply of the goods or their use or resale by the Purchaser. Provided however that nothing in this Clause shall operate to exclude any warranty or condition implied by law as to the quality of the goods in the event that the goods when sold by the Purchaser or when sold by any person or persons to whom the Purchaser may sell the goods shall become the subject of a consumer sale as defined in the Sale of Goods Act 1979, or any statutory re-enactment or modification thereof except to the extent that any claim under such warranty or condition shall have arisen from any act or omission by the Purchaser or by any other person or persons selling the goods by way of a consumer sale.
The total cumulative liability of the Company arising from and related to these Conditions of Sale whether the claims are based in contract, in tort (including negligence or strict liability) or otherwise, shall not exceed the price of the Good or Services on which such liability is based.
The Company shall not be responsible for, and the Purchaser shall at all times indemnify and hold the Company harmless from and against all actions, claims, demands, liabilities, damages, costs and expenses arising out of, or incurred in relation to, any injury to any persons or loss or damage to any property whatsoever, which is occasioned by or arises out of a defect in any Goods manufactured by the Company, and which is solely attributable either to the Company’s adherence to the Purchaser’s specification, or to the negligent acts or omissions of the Purchaser.
Insolvency of Purchaser
This Clause applies if:-
(i) The Purchaser becomes insolvent or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(ii) An encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Purchaser; or
(iii) The Purchaser ceases, or threatens to cease, to carry on business; or
(iv) The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
If this Clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Purchaser, and if the goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
If this Clause applies then the Purchaser shall have a duty to immediately bring to the notice of any receiver administrator or any such person or persons appointed the existence of and content of the Passing of Property and Risk Clause of these Conditions of Sale and the rights of the Purchaser to use or trade on the Company's goods is immediately terminated and any such receiver, administrator or other person or persons appointed will not be entitled to use or to trade on the Company's goods unless so authorised in writing by the Company.
The Purchaser will indemnify the Company against all damages penalties costs losses and expenses suffered by the ompany or for which it may become liable in respect of the infringement of any intellectual property including (but without limitation) any patent, copyright, registered design, trade mark, trade name or know-how arising out of the Company's manufacture of goods in accordance with any specification design drawings or other data supplied by the Purchaser or its servants or agents.
All drawings, descriptions and other information submitted by the Company, together with the copyright therein shall remain the property of the Company.
Force Majeure and Other Circumstances
The Company shall be entitled without liability on its part and without prejudice to its other rights, to terminate the contract or any unfulfilled part thereof, or at its option to suspend or make partial deliveries or extend the time or times for delivery, if the manufacture of the goods by the Company or the Company's suppliers, or the delivery of the goods or the performance by the Company of any of its obligations under the contract is hindered or delayed whether directly or indirectly by reason of the Purchaser failing to furnish necessary instructions or information, or by war or other hostilities, civil commotion, act of God, government action or legislation, interruption of transport, strike, lock-out or other form of industrial action (including, without limitation, labour disputes with the Company's or any sub-contractor's employees), accidents or stoppages to works, shortage of labour materials equipment fuel or power, breakdown of machinery or any other cause whatsoever beyond the reasonable control of the Company or its sub-contractors, whether or not such cause exists at the date of the order.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Conditions of Sale or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
Third Party Rights
A person who is not party to the Contract shall have no rights under the contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
Law and Jurisdiction
These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
Any dispute, controversy, proceedings or claim between the parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts in England and Wales.
If at any time any question, dispute or difference whatsoever shall arise between the Purchaser and the Company upon or in relation to or in connection with the contract, either party may give the other notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within 30 days of receipt of such notice, of some person appointed by the President for the time being of the Chartered Institute of Arbitrators. A submission to arbitration under this Clause shall be deemed to be a submission to a sole arbitrator pursuant to the Arbitration Act 1996 or any statutory modification or re-enactment thereof. Any such arbitration shall be held in London, England.