TERMS AND CONDITIONS OF SALE
terms and conditions set out in this document shall constitute the
sole and entire terms and conditions in the purchase of the
Company’s product by the Buyer. All other terms and conditions
whether the Buyer’s or whether express or implied by statute or
otherwise, are expressly excluded, save in so
far as adopted, varied or included by written agreement between
2. THE PRICE
All the prices quoted are those ruling at the date of
quotation. The quoted price is valid for a period of 60 days unless
otherwise stated. The Company reserves the right to increase any price
if material costs or wages increase after acceptance of order and
before delivery. In such event the Company will notify the Buyer of
the increase in price and the Buyer shall have the right to cancel the
order providing the Company is notified of such cancellation within
seven days of the date of the Company’s advice of price increase.
Any alteration by the Buyer in design, weight, qualities or
specifications and any suspension or rescheduling of work due to the
Buyer’s instructions or omissions will involve adjustment of the
agreed or quoted price, if costs are thereby affected.
The Company is not bound once the Buyer’s order has been
accepted to agree to any amendment of such order nor to incorporate
any new design or improved features in the goods.
Prices quoted are net. Time of payment is of the essence.
Goods supplied from Avolites are due for payment before, or strictly upon, dispatch from Avolites, Park Avenue unless credit terms have been agreed IN WRITING with Avolites. Interest at the rate of 3% above the average of the U.K. clearing banks’ minimum lending rate, as amended from time to time, will be charged on a day to day basis on overdue accounts calculated form the date payment is due until receipt of the payment at the Company’s offices.
4. PROPERTY AND RISK
Notwithstanding that the Buyer or his agents obtain possession
of the goods the ownership therein will remain in the Company until
such time as payment is made in full to the Company which shall be
entitled to all rights of access to the Buyer’s premises to enforce
its rights hereunder, and to all such information relating to the
goods as the Company may require.
Until property in the goods has passed to the Buyer, the Buyer shall
take proper care of the goods and take all reasonable steps to prevent
any damage or deterioration to the goods, and shall ensure that the
goods are kept free from any charge, lien or other encumbrance and
shall store the goods in such a way as to indicate that they are the
property of the Company.
In the event of the Buyer reselling or otherwise disposing of the
goods or any part thereof or any item or items into which the goods
have been incorporated
before the property has passed to the Buyer by virtue of Clause 4 (a)
hereof the Buyer will, until payment is made in full to the Company of
the price of the goods, hold in trust for the Company all his rights
under such contract of resale and shall hold the proceeds of sale in
trust for the Company and the Company shall be entitled to trace the
goods into such item or items or the proceeds of sale.
amount of any and all tax or other Government charge or duty in
respect of or connected with the goods, and the cost to the Company of
confirming with any other legal requirements imposed varied or coming
into force after the date of this agreement shall be added to the
price and paid by the Buyer. In addition Value Added Tax will be added
to all quotations as appropriate.
6. ACCEPTANCE OF QUOTATION
of the Company’s written quotation shall be taken as acceptance of
these terms and conditions of sale subject to any variation thereto
agreed by the Company in writing.
7. DELIVERY DATES
delivery dates are quoted in good faith but time shall not be deemed
to be of the essence. The Company shall not be liable for any loss or
damage (whether direct or consequential) whatsoever arising form late
delivery of goods or material and the Buyer shall not be entitled to
treat the contract as repudiated by reason of any such late delivery.
Where the buyer after being notified that the goods are ready for
despatch for any reason refuses or is unable to accept delivery of the
goods, the Company shall be entitled at any time to invoice the Buyer
with the full price, which the Buyer shall then pay. The Buyer will
also pay the Company its charges for storing the goods after that
date. Delivery shall be deemed to take place when the goods leave
Avolites, Park Avenue and all risk in the goods shall pass to the
Buyer upon delivery.
accepted by the Company cannot be cancelled except with the
Company’s consent. In the event of an order being cancelled by the
Buyer, the Buyer shall be liable to indemnify the Company against all
losses (including loss of profit) costs and other expenses and damages
(whether direct of consequential) occasioned by such cancellation.
9. DAMAGE, SHORTAGE OR LOSS IN TRANSIT
Company will not accept any claim for damages, shortages or loss in
transit unless such claim is notified in writing to the Carrier within
the Carrier’s permitted period. Where goods are accepted from the
Carrier concerned without being checked the delivery book of the
Carrier must be signed ‘not
examined’. Subject to the foregoing any claim by the Buyer for
alleged defects in the goods, or shortages or other irregularities
must be notified in writing to the company within three days of
delivery. The Company shall have no liability in respect of damage or
shortages caused by acts or omission of the Buyer or of others or by
causes beyond the Company’s control.
10. LIABILITY OF THE COMPANY
The Company does not seek to exclude liability for death or personal
injury resulting from the negligence of the Company, its servant or
agents or, where the Buyer deals as a consumer as defines in section
12 of the Unfair Contract Terms Act 1977 but not otherwise, to exclude
liability of the Company in respect of goods’ correspondence with
description or sample or their quality or fitness for any particular
In addition the Company will use its best endeavours to pass on to the
Buyer the benefit of any guarantee, condition or warranty which may
have been given to the Company by any suppliers to the Company or
implied in favour of the Company but the Buyer must indemnify the
Company against all costs, claims and expenses incurred in connection
with the enforcement thereof.
Save as stated in paragraphs (a) and (b) above the Company does not
sell or supply the goods subject to any representation concerning
their condition, performance or quality or with or subject to any
condition or warranty whether express or implied by statute or
otherwise and all representations, conditions and warranties are
hereby expressly excluded.
Notwithstanding and without prejudice to clauses (a) to (c) above,
where the Company has been notified of any irregularity under clause 9
hereof the Company will replace at its despatch office such goods as
the Company agrees are irregular or faulty (such replacement to be
free of charge) or at the Company’s option, make a fair cash
allowance op to the invoice value of the goods. The Company’s
liability will not extend to include consequential damage or loss
lieu of any warranty, condition or liability implied by law, the
liability of the Company in respect of any defect in or failure of the
goods supplied, or for any loss, injury or damage attributable
thereto, is limited to making good by replacement or repair, at the
option of the Company, defects in the goods of the Company’s
manufacture which, under proper use, arise solely from faulty
materials or workmanship within twelve months after the goods were
first despatched. Provided always, that unless otherwise agreed in
writing, such defective parts are returned at the Buyer’s expense to
the Company’s works. Any labour costs involved in refitting will be
chargeable to the Buyer.
the case of goods not manufactured by the Company these benefits shall
be limited to the extent of the guarantee given to the Company in
respect thereof by the manufacturer.
12. THIRD PARTY LIABILITY
Company shall not be liable for and the Buyer shall indemnify and hold
the Company harmless against any claim, by any person, for loss or
damage (excepting personal injury or death) to any person or property,
directly or indirectly, occasioned by, or arising from; the use of,
operation of, or possession of, any of the goods.
the Buyer shall indemnify and hold the Company harmless against any
claim, by any person, arising from the use, operation or relation to
the goods, the fulfilment of contractual obligations pursuant to this
agreement, the provision of information or otherwise, or from misuse
of the goods by or on the part of the Buyer, or any person or persons
other than the Company. This indemnity shall extend to any costs and
expenses incurred by the Company and shall continue in force
notwithstanding termination of any agreement governed by these
conditions. The Buyer shall indemnify the Company against all claims
whether made under any contract or statute or pursuant to common law
in respect of any loss or damage to any property whatsoever or injury
to any person whatsoever arising out of any defect in materials or
workmanship in connection with any goods manufactured and/or sold by
the Company, or any default or negligence on the part of the
Company’s servants in connection with or during the carrying out of
any work by the Company on customers’ or other persons’ property.
Materials. Unless otherwise stated all tests or test pieces, required
by the Buyer will be charged extra.
Proof or Break. No tests are included other than those (if any)
specified in the quotation, notwithstanding Terms or Specifications.
14. INFRINGEMENT AND COPYRIGHT
The Buyer shall indemnify the Company against all damages, penalties,
costs, claims and liability in respect of the infringement of any
patent rights or registered design or copyright resulting from the
carrying out of the work in accordance with the Buyer’s
specification or instructions, express or implied.
Copyright in all documents (including drawings and handbooks) and
software furnished to the Buyer shall be used without the express
written consent of the Company for any purpose other than that for
which they were furnished.
Company does not accept contractual or tortuous liability for the
statements contained in published literature which is for information
only and intended as a guide for prospective users.
16. CARRIAGE AND PACKING
otherwise stated, prices quoted are ex-works’ and carriage is
charged as an extra.
17. LOADING and OFF
LOADING OF GOODS
Buyer should provide adequate transport for the carriage of the
Company’s goods, in so far as (a) flightcased items should be
stacked upon their wheels, or upon their bases; (b) the transport for
such goods should have a tail lift, or sufficient width to allow
normal fork lift access, where the loading or off loading is required
upon the Company’s premises.
arising to goods whether in loading/off loading or in transit through
the failure to provide adequate transport shall be the liability of
18. COMPANY’S RIGHT TO TERMINATE
the Buyer shall make default or commit a breach of the contract or of
any other of his obligations to the Company or if any distress or
execution shall be levied upon the Buyer’s property or assets or if
the Buyer shall make or offer to make arrangement or composition with
his creditors or commit any act of Bankruptcy or if any petition or
receiving order in Bankruptcy shall be presented or made against or
(if the Buyer is a Limited Company) any resolution or petition to wind
up its business (other than for the purpose of reconstruction or
amalgamation) shall be passed or presented or if a Receiver of such
company its undertakings property or assets or any part thereof shall
be appointed the Company shall have the right forthwith to determine
any contract then subsisting and upon written notice of such
determination being posted to the Buyer’s registered office or last
known address any subsisting contract shall be deemed to have been
determined without prejudice to any claim or right the Company may
otherwise make or exercise. In the event of any contract being so
determined by the Company, the Buyer shall indemnify the Company on
demand against all losses (including loss of profit), costs,
(including costs of labour and materials), damages (whether direct or
consequential), charges and expenses arising out of the order and such
Buyer shall not assign or otherwise dispose of this contract without
the Company’s prior written consent.
20. PROPER LAW
Conditions and Contracts governed thereby shall be interpreted in
accordance with the Law of England. The Company and the Buyer shall
endeavour to settle amicably between themselves any difficulties
arising out of these Conditions of Sale. Any disputes not so resolved
arising out of any contract made between the Company and the Buyer
shall be determined by an English Court of competent jurisdiction, or,
at the option of the Company, shall be submitted to arbitration in
London in accordance with the provisions of the Arbitration Act 1950
as amended or re-enacted.
21. HEALTH AND SAFETY AT WORK ETC. ACT 1974
Buyer must satisfy himself after making all necessary investigation
that the goods are intrinsically safe or can be made safe so far as it
affects his employees and the implementation of the above Act. Where
goods are produced to the Buyer’s design it is the Buyer’s
responsibility to ensure that the design is tested and the Buyer must
indemnify the Company against all loss or any such liability under
such act for not testing the materials or the goods.
22. VARIATION OF THE COMPANY’S STANDARD TERMS
conditions are imposed in the interests of both the Buyer and the
Company, and in particular so that the Company may provide the goods
at the most economic price. If the Buyer requires any variation of
these terms or considers that any particular terms or terms are
unreasonable then the variation (subject to Clause 1 hereof) can be
arranged subject (if appropriate) to the payment of such additional
amount as shall compensate the Company for any additional liability
the Company undertakes the installation of the equipment or materials
supplied in the Buyer’s premises the Company shall not be
responsible for any incidental, direct or consequential damage or loss
occurring as a result thereof nor any third party claims in connection
24. FORCE MAJEURE
Company will not be liable for any failure or delay in delivery due to
causes beyond its control including (but without prejudice to the
generosity of the foregoing) inability to obtain materials, war,
invasion, act of a foreign enemy, hostilities (whether or not war has
been declared), civil war, rebellion, revolution, insurrection or
military or usurped power, accidents, plant breakdowns, interference
by labour or strike or lockout of employees, Acts of God or an
restriction, regulation order, act omission or operation by any local
or municipal authority public corporation or government department. If
by reason of any such circumstances the Company is unable to supply
the total demand for a product, the Company may allocate its available
supply among its customers (including the Buyer) and itself on what it
adjudges to be an equitable basis.