Apex Shelter Systems Ltd – Terms and Conditions of Sale
1. These conditions have the following meaning:-
“Buyer” – The individual, company, firm or other party from whom an order for the supply of goods or services is received by the Seller.
“Seller” – Apex Shelter Systems or associate of the company as notified in writing to the Buyer.
“Goods” – The articles, items or goods which the company is to supply or carry out.
“Contract” – A verbal or written contract for the supply of goods or services by the Seller to the Buyer.
“Conditions” – The Sellers standard Terms and Conditions of Sale and any additional terms as agreed in writing by the Seller.
2. Orders, Conditions and Variations
2.1 No orders shall be binding until the Seller has accepted the order in writing.
2.2 The contract is subject to these Terms and Conditions, except in clause 2.3.
2.3 Any variations or waivers to the conditions must be expressed in writing by the Seller and signed by an authorised officer of the Seller.
2.4 Unless otherwise agreed in writing by the Seller, these Terms and Conditions will countermand any stipulated conditions by the Buyer in the contract or pre-contract negotiations.
3.1 Any descriptions, illustrations, photographs or specifications contained in the Sellers catalogues, pamphlets, price lists or other advertising features are not guaranteed to be accurate. This will not form any part of the contract unless agreed in writing by the Seller.
3.2 The Seller reserves the right to correct any clerical or typographical errors made by its employees.
3.3 At any time the Seller reserves the right to modify the specifications of the goods/materials used in their manufacture without any prior notice.
4. Designs and Instructions
4.1 No rights of interest or ownership for any Sellers patent, design right, registered design, trade name, trade mark, copyright or any other intellectual property owned by the Seller shall pass to the Buyer in relationship to goods and services supplied.
4.2 Where goods are made or services provided to Buyers specification/design or instruction, the Buyer warrants and undertakes responsibility for the suitability of the design/service.
4.3 The Buyer declares it will communicate any information as to the safe handling of the goods which have been provided to all third parties or users.
4.4 The Seller reserves the rights to make alterations to the goods or services’ providing this does not impinge on the quality or service.
5. Prices and Quotations
5.1 Sellers quotations shall be valid for 60 days from the date of issue and are provisional and may be changed for any reason at any time.
5.2 The Seller at any point of the contract to completion can alter the prices charged in the event of any rise or fall in labour costs, raw materials, rates of wages and other production costs.
5.3 The Seller may also increase its prices to compensate any inadequacies or errors in the specification provided by the Buyer or any modifications requested by the Buyer.
5.4 Unless otherwise stated, the prices quoted are exclusive of any value added tax, packaging, carriage, insurance, offloading and installation.
6. Delivery and Shortages
6.1 Carriage is to be charged on all dispatches. If a preferable carrier is instructed by the Buyer, the difference in cost can be redeemed by the Seller over and above the cost of the normal carriers.
6.2 Every effort will be made by the Seller to supply the goods or service by the dates quoted. Failure to deliver or provide such service by the due dates shall not constitute a breach of contract. Under no circumstances shall the Seller suffer any loss or damage resulting from such breach.
6.3 The Seller reserves the right to deliver and invoice any part of an order when available or when any service has been undertaken.
6.4 In the event of any performance or obligation being prevented or delayed due to any causes beyond reasonable control, neither party shall be responsible but the affected party shall inform in writing the other party with the cause. The completion of the contract shall be complied with as promptly and fully as possible.
6.5 If the Buyer requires a postponement to the delivery of the goods, the Seller shall endeavour to undertake such request but not compelled. All costs incurred due to the postponement such as transportation and storage charges will fall to the Buyer.
6.6 The Buyer shall have no claim for shortages, defects or other damage apparent on visual inspection unless:
6.6.1 The Customer inspects the Goods within 3 working days of arrival at its premises or other agreed destination and notifies the Seller of the claim orally within such period; and
6.6.2 A written complaint is made to the Company and to the carrier within 7 days of receipt of the Goods or such shorter period as the carriers conditions (if applicable) require specifying the shortage, defect or damage; and
6.6.3 The Company is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
6.7 If the provisions of clause 6.6 are not complied with then the Goods shall be deemed to be in all respects in accordance with the Contract and the Buyer shall be bound to pay for the same accordingly. If short delivery does take place, the Buyer undertakes not to reject the Goods but to accept Goods delivered as a part performance of the Contract.
6.8 The Customer shall have no claim for non-delivery unless a written complaint is made to the Company and to the carrier within 14 days of the date of the Company’s invoice or advice note or such shorter period as the carrier’s conditions (if applicable) require.
6.9 Subject to compliance by the Customer with the terms of these conditions, which shall be a condition precedent to the Company’s liability, the Company shall at its option be entitled to repair or replace free of cost and within a reasonable time any Goods lost in transit or found to be defective or damaged on visual inspection. If the Seller does so repair or replace the Goods the Buyer shall be bound to accept such repaired or replacement Goods and the Seller shall be under no further liability in respect of any loss or damage whatsoever arising from the initial delivery or lack of delivery or from any delay before the defective Goods are repaired or the replacement Goods are delivered.
6.10 Before the Buyer becomes entitled to reject the Goods or the Services the Company shall be given reasonable time and opportunity in order to rectify its performance. If the Company does so rectify its performance the Goods or the Services shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to pay for the same accordingly. If the Customer does become entitled to reject the Goods or the Services the Company shall repay to the Customer any sums paid by the Customer in respect thereof but shall be under no further liability in respect of its failure to perform or the consequences thereof. The Customer shall in any event have no right to reject the Goods or the Services or any part of them on account of minor omissions or defects which do not materially affect the commercial use of the Goods and/or Services.
7.1 Whereby goods or services are carried out in instalments, each instalment shall be deemed a separate contract.
7.2 Where goods and services are delivered in instalments, the Seller is entitled to invoice each instalment. Failure of the Buyer to make payments for whatever reason shall entitle the Seller to suspend future instalments or provisions of service under the contract.
8. Additional Quantities
8.1 Where a Buyer requires additional goods for an existing contract with the Seller, the Buyer shall place an order in writing. Upon acceptance in writing from the Seller the provisions of these Conditions shall apply to the additional goods and/or services.
9.1 Cancellation of a contract is to the sole discretion of the Seller. Agreement can be met in writing by the Seller with the condition that any costs, charges and expenses incurred by the Seller to the date of cancellation are met. Any acceptance of cancellation can only be made in writing.
9.2 In the event that the Seller cancels an Order (being an order for an item that is not in stock and/or is required to be specially made or obtained for the Seller) the following handling charges may be levied: the charge to the Buyer by the supplier for the return of the items including carriage which may be 100% of the price of the Goods if the supplier declines to re-stock the item. our administrative and handling costs if we decide to retain the goods in Stock a minimum of 20% of our list price of the goods together with handling costs if the goods have been specifically designed or made by the Buyer for the Seller and we cannot resell the goods then the Seller will be charged for 100% of our full costs up to the time of receipt of your written cancellation.
10. Payment Terms
10.1 The payment for the goods and/or services, subject to an approved credit check is due 30 days from the date of delivery. Time for payment will be the essence of the contract. The payment shall be deemed received once the funds have cleared to the Seller. In the event of our being unable to obtain a satisfactory credit check we reserve the right to request full payment prior to manufacture.
10.2 The Buyer shall not be entitled to make any deduction or withhold any sum from the payment from time to time due from it whether by way of set-off, counter claim, discount, abatement or otherwise.
10.3 If the Buyer fails to pay the Seller the contractual sum due the annual rate of interest set at 3% above Santander base rate will accrue on a daily basis from due date until payment is made.
11. Title of Goods
11.1 Title to the goods will only pass from Seller to Buyer once payment has been received in full and settled any balances owed for previous deliveries.
11.2 Notwithstanding delivery and passing of risk in the Goods, or any other provisions of these Conditions, the property in the Goods shall not pass to the Seller until all sums due or owing by the Seller to the Buyer on any account have been paid.
11.3 Until such time as the property in the Goods passes to the Seller, the Seller shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as our property.
11.4 Until such time as the property in the Goods passes to the Seller (and provided the Goods are in existence and have not been re sold), we shall be entitled at any time to require the Seller to deliver up the Goods to the Buyer and, if the Seller fail to do so forthwith, to enter upon any of your premises or premises under your control where the Goods are stored and repossess the Goods.
11.5 Our demand for or recovery of the Goods shall not of itself discharge either your liability to pay the whole of the price and take delivery of the Goods or our right to sue for the whole of the price.
11.6 If the goods are sold to a third party with valid title the proceeds of the sale are to be held on trust for our benefit.
This clause applies if: the Seller makes any voluntary arrangement with your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets; or the Seller cease, or threaten to cease, to carry on business; or we reasonably apprehend that any of the events mentioned above is about to occur in relation to the Seller and notify the Seller accordingly. If this clause applies then, without prejudice to any other right or remedy available to the Buyer, we shall be entitled to cancel the Contract or suspend any further deliveries or provision of services under the Contract without any liability to the Seller, and if goods have been delivered or a service provided but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. Health and Safety at Work act 1974
12.1 The Seller will make available any requested information regarding design, installation and construction to ensure where reasonably practicable, they are safe and without risk to health. The Buyer should inform the Seller of any requirement which it considers necessary that the goods being supplied should comply with; otherwise the Buyer assumes responsibility for the Goods being sufficient and suitable for the purpose.
13.1 If the Contract provides for the provision of Services by the Seller then the Seller shall provide the requisite skilled labour, supervision and tools for the installation of the goods and/or services according to the details in the quotation.
13.2 If the Services are to be carried by the Buyer or the Buyer has agreed responsibility for the provision then the Buyer undertakes to provide or to procure the provision free of charge of:
(i) free, suitable and safe access to the site and to the point at which the work is to be carried out;
(ii) in the case of installation of goods proper, adequate and accurate foundations to receive the goods as and when delivered;
(iii) all necessary lifting tackle and scaffolding;
(iv) proper and safe storage and protection against the elements of all goods, tools, plant and equipment and materials on site from the time of delivery;
(v) all necessary facilities and adequate assistance for the provision of the relevant Services as appropriate including consistent and adequate supplies of water, light, earthing points and any other necessary services or facilities that may be required by the Seller to enable the Services to be expeditiously and continuously carried out; and the Buyer shall pay to the Seller the amount of any expenses incurred by the Seller by reason of any breach by the Customer of any of its undertakings in this clause but without prejudice to the Company’s right to recover further damages therefore. Should the Company incur additional costs owing to suspension of the Services by the Customers instructions or lack of instructions, interruptions, delays, overtime, unusual hours, mistakes or lack of any facilities in each case by reason of causes within the Buyer’s control such reasonable additional costs shall be added to the Contract price and paid for by the Buyer in accordance with the payment terms contained in these conditions.
13.3 All Goods supplied on site shall at all times be at the sole risk of the Customer so that the Customer shall be responsible for all loss, damage or deterioration to the Goods on site.
14. Passing of Risk 14.1 Risk in the goods shall pass to the Customer as follows:- where the goods are delivered by the Company’s own transport or by carrier on behalf of the Company risk will pass upon delivery to the Customer. Where the goods are collected by the Customer or handed over to a carrier named by the Customer risk shall pass on collection or delivery as the case may be.
15.1 The Seller offers as part of the contract agreement a 12 months warranty against parts and labour. The basis of this warranty is that the fault be discussed with the Seller’s technical support staff primarily. If under the conditions of proper use and maintenance the results appear to be with the Seller’s manufacture, design, materials or workmanship and which appears not to be later than 12 months after the date of delivery the Seller shall make good by repair or replacement. Faults incurred by abuse of the product (as defined by the Seller) are not covered by the warranty.
15.2 Attempted repair or alteration of the goods as supplied by the company, by another party immediately invalidates the warranty offered.
15.3 In the case of claim falling with the Seller, the Seller reserves the right at its sole discretion to credit the Buyer in full the price paid by the Buyer to the Seller.
15.4 The Seller’s liability shall automatically cease if the Buyer has not paid for all goods supplied and or services provided under this contract.
15.5 The Seller’s liability shall automatically cease if the Buyer or agents deny full and free access to the allegedly defective goods and/or services or the goods have not been properly maintained.
15.6 The Seller’s liability shall automatically cease if the defect or failure is caused by wear or tear or caused by wilful damage, neglect, dirt, misuse, accident or abnormal working conditions.
15.7 This limited warranty is the only warranty applicable to the products sold by seller and is expressly in lieu of any other warranties or indemnification, express or implied, including any implied warranties of merchantability or fitness for a particular purpose or any implied condition that the seller has or will have the right to sell the goods when the property is to pass to.
15.8 The Seller’s responsibility is limited to the terms of the foregoing provisions of this condition and (except in respect of death or personal injury resulting from negligence of the Seller or its agents) the Seller shall not be liable for any direct or indirect consequential or incidental loss, injury or damage claim whatsoever, (including but not limited to the loss of profit) made by the Buyer or any third party against the Seller arising out of or in connection with any defect in the goods and/or services whether or not any such defect is directly or indirectly wholly or in part caused by the act, omission, default or negligence of the Seller or its agents and whether or not such defect amounts to a breach of a fundamental term or a primary obligation of the contract or a fundamental breach thereof.
15.9 Any warranty claim by the Buyer must be in writing, containing full particulars, and submitted to Apex Shelter Systems within 15 days of when the cause of the claim first came to the Buyer’s attention. The relevant equipment must be held intact by the Customer so as to be available for inspection by Apex Shelter Systems staff, agents or representatives.
16. Testing and Inspection 16.1 If the Seller agrees for a test to be carried out by the Buyer, they must agree a mutually convenient date so that the Seller or their representative can be present for the purposes of witnessing the tests and they shall be bound by the results thereof.
17. Subcontracting 17.1 The Seller reserves the right to sub-contract any part of any work or supply of any goods or services.
18. Headings 18.1 The headings of these conditions are for convenience only and shall have no effect on the interpretation.
19. Force Majeure We shall be relieved of all liability for obligations incurred to the Buyer whenever and to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded in consequence of any stature, rules, regulations issued by any government department, council or other duly constituted authority or by reason of any strikes, combination of workmen, lockouts, breakdown of plant, accident, civil commotion, war, force majeure or any other cause beyond our control.
20. General 20.1 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
20.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
20.3 These terms and conditions shall be governed by and construed in accordance with the laws of England and the parties submit to the jurisdiction of the English Courts.
20.4 In the event that any of these conditions shall be held to be invalid, unlawful or unenforceable to any extent then such part of these conditions shall be severed from the remaining conditions which shall continue to be valid and enforceable to the fullest extent permitted by law
This edition of the Conditions of Sale dated January 2014 supersedes all previous editions.