Sales Terms & Conditions
1. Definitions and Interpretation.
1.1 The following words and expressions shall have the following meanings unless the context otherwise requires:
“Conditions” means these terms and conditions; “Contract” means any agreement for the sale of Goods from the Company to the Customer in accordance with Condition 2.4 of these Conditions; “Company” means ASH Door Furniture & Entrance Specialists Ltd a company registered in England and Wales with registration number 02951318 whose registered office is at ASH House, Private Road No8, Colwick Industrial Estate, Colwick, Nottingham, NG4 2JX; “Customer” means the person, firm or supplier which has accepted these Conditions; “Goods” means all goods supplied by the Company to the Customer pursuant to the Contract; “Images” means the images of the Goods which are made available by the Company to the Customer subject to these Conditions; “Intellectual Property” means all patents, rights to invention, utility models and patent rights, service marks, trade, business and domain names, rights to processes and procedures, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know how and trade secrets), and any other intellectual property rights in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world; and “Quotation” means any proposal, tender or estimate submitted to the Customer by the Company prior to the Contract being made;
1.2 In these Conditions:
1.2.1 a reference to a law is a reference to it as in force for the time being taking into account any amendment, extension, application or re-enactment and includes any subordinate legislation;
1.2.2 words in the singular include the plural and words in the plural include the singular;
1.2.3 a reference to one gender includes the other and the neutral;
1.2.4 words importing persons include firms, companies and corporations and vice versa;
1.2.5 the headings to Conditions do not effect the interpretation of these Conditions;
1.2.6 where the word ‘including’ is used in these Conditions, it shall be understood as meaning ‘without limitation’ and where the context permits, the words ‘other’ and ‘otherwise’ are illustrative and shall not limit the sense of the words preceding them; and
1.2.7 any reference to ‘writing’ or any cognate expression includes communications by post, facsimile and e-mail but excludes text messages.
Basis of Contract
2.1 These Conditions alone shall govern and be incorporated in every Contract for the sale of Goods by the Company to the Customer.
2.2 No addition to nor any cancellation, variation, qualification or waiver of any or all of these Conditions shall have any legal effect whatsoever (whether acted on by the Customer in any way or not) and no person other than a Director of the Company has or is held out by the Company to have authority to vary these Conditions unless such person’s authority is confirmed in writing and signed by a Director of the Company.
2.3 Any Quotation submitted to the Customer will not constitute an offer and shall remain valid in accordance with Condition 3.3.
2.4 Each order or acceptance of a Quotation for the supply of Goods by the Customer shall be deemed to be an offer by the Customer to purchase the Goods subject to these Conditions. The Contract shall be made when the Company acknowledges the order placed by the Customer in writing and not before.
2.5 Prior to the Company’s formal acceptance of any order no written or oral information about the price, availability, delivery, design, specification, importation or description of the Goods shall have any contractual effect or be incorporated in the Contract except insofar as and to the extent that these Conditions and any variations complying with Condition 2.2 expressly allow and save that nothing in this Condition excludes the Company’s liability for fraudulent misrepresentation.
2.6 The Company reserves the right to alter, modify or otherwise improve the design of Goods without notification and Customers’ orders will be executed with current models.
2.7 Any typographical, clerical or other omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.1 Unless the price in a Quotation is expressly stated not to be subject to this Condition, the Quotation is based on costs and prices ruling at the date of the Quotation.
3.2 The price given in the Quotation is for the quantity expressed and any variation in quantity may entail the Company varying the price quoted.
3.3 Quotations shall remain valid for either 28 days from and excluding the date of the Quotation or as specified in the Quotation unless within such period the Company amends or withdraws the Quotation in writing.
3.4 Each order or acceptance of Quotations shall be in writing addressed to the Company at its address in the Quotation. The Customer warrants that any servant or agent of the Customer signing an acceptance of Quotation shall be warranted by the Customer as having authority to bind the Customer.
4. Cancellation and Suspension of Orders
4.1 Orders accepted by the Company may not be cancelled by the Customer either wholly or in part, nor may the Customer suspend delivery of the Goods, without the prior written consent of the Company and on the terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Company as a result of the cancellation or suspension.
4.2 If the Company is ready to deliver goods on the date agreed in accordance with the Contract and the Customer requests the Company to delay delivery for any reason the Company may present invoices to the Customer for full settlement within 30 days of the date previously agreed for delivery.
4.3 In the case of the Customer suspending deliveries of any instalment under the Contract then the Company shall be entitled at its own absolute discretion to either:
4.3.1 despatch and invoice to the Customer the balance of the quantity remaining under the Contract at the date of suspension; and/or
4.3.2 present an invoice to the Customer to adjust the price relative to the quantity actually delivered against the Contract if such price varies from the price relating to the full Contract quantity.
5.1 The price of the Goods shall be in accordance with the Company’s price list ruling on the date of despatch.
5.2 Except as otherwise stated in the terms of any Quotation the price of the Goods is exclusive of transportation and insurance costs where delivery is to a location within mainland UK. In the event that the Customer requires delivery to a location outside of mainland UK then the price shall be as agreed by the parties in writing.
5.3 All prices quoted are exclusive of VAT or any other sales tax which will be charged at the rate in force at the time of despatch.
6. Terms of Payment
6.1 The payment terms in this Condition apply save to the extent that they are inconsistent with any specific payment terms set out in the Quotation or agreed in writing by a Director of the Company.
6.2 Payment shall be made in full without set off or other deduction by the end of the month following the month in which delivery takes place.
6.3 The time for payment of the Company’s invoices shall be of the essence of the Contract.
6.4 If the Customer either fails to pay in full any invoice from the Company by the due date for payment or exceeds the maximum outstanding credit facility agreed by the Company in writing without prejudice to any other right or remedy the Company may have:
6.4.1 all invoices issued by the Company in respect of any goods sold or supplied pursuant to any contract shall immediately fall due for payment; and
6.4.2 the Company shall be entitled to:
18.104.22.168 cancel or suspend further deliveries under any contract;
22.214.171.124 sell or otherwise dispose of any goods which are the subject of any order by the Customer, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment or reduction in the excess over the maximum credit facility;
126.96.36.199 charge interest (both before and after any judgment) on the amount unpaid, at an annual rate of 4% over the base rate of HSBC Bank PLC;
188.8.131.52 by notice to the Customer unilaterally vary the Customer’s credit available and/or payment terms for future contracts.
7.1 The Supplier shall reasonably endeavour to deliver the Goods on the date stated in the Quotation, in its order acknowledgement, or other date agreed between the parties in writing from time to time, but such dates are reasonable estimates only and the time for delivery shall not be of the essence.
7.2 The Company shall have the right to deliver Goods ordered in instalments.
7.3 In the event that the Company is unable for any reason to fulfil any delivery of the Goods on any estimated delivery date the Company shall not be deemed to be in breach of contract or have any liability to the Customer. Failure by the Company to supply any one or more instalments on any estimated delivery date or any claim by the Customer in respect of Goods delivered in any one or more instalments shall not entitle the Customer either to treat the Contract as a whole as repudiated or to reject or refuse to take delivery of any of the Goods delivered in any other instalment.
7.4 If the Customer fails to take delivery of the Goods (otherwise than by reason of the Company’s fault) or fails to give the Company adequate instructions for delivery then, without prejudice to any other right or remedy available to the Company, the Company may:
7.4.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage and redelivery; and/or
7.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the Contract.
7.5 The Customer shall accept delivery of the Goods and shall promptly unload the Goods. For the avoidance of doubt, the Company or the Company’s carrier shall not be responsible for unloading the Goods and the Customer shall be charged for wasted time at the Company’s standard rate and any other expenses incurred by the Company for:
7.5.1 wasted time for any delay in unloading;
7.5.2 each repeat delivery where the Company or Company’s carrier leaves the delivery point and subsequently returns to the delivery point with the Goods; and/or
7.5.3 as a result of the Customer’s inability or unwillingness to accept delivery and/or delay in unloading the Goods.
7.6 If at the Customer’s request or through his failure to collect or give full forwarding instructions the Goods are not despatched from the Company’s premises within 14 days from the Company’s notification that the Goods are available for despatch then the Company will be entitled to receive the full amount of the price for the Goods under Condition 6.2 as though the Customer had taken delivery.
8. Loss or Damage in transit
8.1 Non-delivery must be notified to the Company in writing within 7 days from the date under the Contract.
8.2 Damage to Goods or any shortfall must be notified in writing by the Customer to both the Company’s carrier and the Company within 3 days of delivery.
8.3 The Company shall be entitled to make good any shortage or non delivery of the Goods.
8.4 Failure by the Customer to comply with Conditions 8.1 and/or 8.2 will render void any possible claim of any nature against the Company.
9.1 Any complaint as to non-compliance of the Goods with specifications must be notified in writing by the Customer to the Company within 30 days from the date of delivery and if the Customer fails to do so the Company shall be entitled to receive payment in full for the Goods and the Customer shall have no claim of any nature against the Company in respect of such alleged non-compliance.
10.1 Risk of damage or loss to the Goods shall pass to the Customer:
10.1.1 where the Goods are delivered or forwarded by the Company the risk shall pass to the Customer immediately upon delivery; or
10.1.2 where the Goods are collected by or on behalf of the Customer the risk shall pass immediately upon collection; or
10.1.3 where the Customer wrongfully fails to take delivery, risk shall pass to the Customer at the time when the Company has tendered delivery of the Goods.
11.1 Title in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of:
11.1.1 the price of the Goods; and
11.1.2 all other sums payable by the Customer to the Company for which payment is then due.
11.2 Until such time as title in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer 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.
11.3 The Customer 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 Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
11.4 Until such time as title in the Goods passes to the Customer:
11.4.1 the Company may determine the authority contained in Condition 11.3 for the Customer to resell or use the Goods in the ordinary course of its business;
11.4.2 the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and if the Customer fails to do so forthwith, to enter upon any premises where the Goods are stored and mark, identify and repossess the Goods; and/or
11.4.3 if Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.
11.5 The Customer shall if required to do so by the Company:
11.5.1 account to the Company for the proceeds of sale of the Goods;
11.5.2 keep such proportion of the proceeds of sale of the Goods as may from time to time be sufficient to discharge the indebtedness of the Customer to the Company in respect of the Goods in a separate bank account clearly designated as containing monies belonging to the Company; and/or
11.5.3 assign to the Company its rights as against a purchaser of the Goods.
12. The Customer’s Duties and obligations
12.1 In connection with the promotion and marketing of the Goods the Customer shall:
12.1.1 only use the Images in accordance with these Conditions; and
12.1.2 maintain adequate and up to date records of Goods sold to assist any product recall or notification or other follow up procedures; and
12.1.3 promptly refer to the Company any complaint or observation received by the Customer regarding any Goods to enable the Company, in conjunction with the Customer, to respond swiftly and efficiently to any such complaint or observation.
13. Intellectual Property
13.1 The Customer acknowledges that the Company is the owner of the Intellectual Property in the Goods. The Customer further acknowledges that the Intellectual Property supplied by the Company for the purpose of the Contract shall remain vested at all times in the Company and the Customer agrees that it will not assert ownership of the Intellectual Property against the Company.
13.2 The Company grants to the Customer a non-exclusive licence (without the right to sub-licence) to use:
13.2.1 the Intellectual Property in relation to the Goods; and
13.2.2 the Images in each case for the purposes only of exercising its rights and performing its duties under these Conditions.
13.3 The Customer shall not:
13.3.1 make any modifications to the Images;
13.3.2 alter, remove or tamper with any means of identification used in relation to the Goods; and/or
13.3.3 use any of the Images or the Intellectual Property in such a way which might prejudice their distinctiveness or the goodwill of the Company therein.
13.4 Except as provided for at Condition 13.1 the Customer shall have no rights in respect of the Intellectual Property or the Images.
14. Warranty and Liability
14.1 Subject to Condition 14.2 below the Company warrants that where it is the manufacturer of the Goods it will have implemented, where appropriate, all reasonable adjustments required to the Goods for use by disabled persons in accordance with the provisions of Part III of the Disability Discrimination Act 1995.
14.2 If within 12 months from the date of delivery the Customer gives written notice of any defect in the quality of the manufacture of the Goods or non-compliance of the Goods with the warranty at Condition 14.1, returns the Goods to the Company carriage paid without delay the Company, shall subject to Condition 14.3 below make good or replace free of charge any part returned, provided always that in the Company’s opinion the Goods are defective and have not in the hands of the Customer been misused, involved in any accident, subjected to any abnormal conditions, or dealt with any way contrary to any instruction issued, or contrary to the normal way which such goods would otherwise be dealt with or handled and subject to Condition 14.5 the Company shall have no further liability to the Customer.
14.3 If any defect shall appear in any part of the Goods not manufactured by the Company the Customer shall be entitled to receive from the Company only those benefits received by the Company under any contract between it and the manufacturer or supplier of the parts in question. The Company’s obligation shall accordingly be strictly limited in this respect.
14.4 Subject as expressly provided in these Conditions, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.5 Except as expressly provided in Condition 14.1 the Company’s liability under the Contract shall be as follows:
14.5.1 in respect of death or personal injury caused by the negligence of the Company the Company’s liability shall be unlimited;
14.5.2 in respect of all direct loss (whether in contract, tort or otherwise) the Company’s total liability under the Contract shall not exceed the lowest cost of replacing the Goods with the same or nearest comparable goods at the time of the claim; and
14.5.3 in respect of any loss of profits, loss of business, loss of goodwill, loss of anticipated savings, loss of use or for any type of consequential, special or indirect loss or damage, the Company’s liability shall be nil.
14.6 The Company shall not be liable to the Customer nor be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Contract, if the delay or failure was due to any cause beyond the Company’s reasonable control such as (but without limitation) any strike, lock-out or other form of industrial action, reduction in or unavailability of power at the Company’s works or those of the Company’s suppliers, breakdown of manufacturing or other equipment and unavailability of raw materials.
14.7 The Supplier shall have no liability under the provisions of these Conditions or otherwise if the Goods have not been paid for by the due date for payment in accordance with Condition 6.2.
14.8 Any claim by the Customer under this Condition 14 in respect of any Goods shall not entitle the Customer to withhold or delay payment in respect of any other Goods in respect of which no such claim has been made whether or not those Goods form part of the same consignment.
15. Returned Goods
15.1 Unless notice is given pursuant to Conditions 9 or 14 or the Company otherwise agrees in writing to the return of Goods by the Customer it shall be entitled to refuse to take back any Goods returned to it at any time.
16. Infringement of third party Intellectual Property Rights
16.1 Where the Goods are made to the Customer’s specification the Customer warrants that the specification does not infringe any Intellectual Property belonging to a third party and indemnifies the Company in full against all actions, proceedings, claims and demands, damages, penalties, costs and expenses arising out of any such infringement.
17.1 The Company shall be entitled to terminate the Contract with immediate effect if:
17.1.1 the Customer defaults in payment of any sum due under these Conditions;
17.1.2 any distress is executed or execution is levied upon the Customer his property or assets, the Customer makes or offers to make any composition with creditors, or a receiver is appointed of the undertaking and assets of the Customer, or a petition is filed or made or effective resolution passed for winding up (except for the purpose of reconstruction or amalgamation) or the Customer, being an individual commits any act which would be an act of bankruptcy or any petition for a receiving order is presented against him;
17.1.3 the Customer ceases to a material extent to carry on its business; and/or
17.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly
provided always that the Company shall be entitled to a lien on all goods of the Customer in its possession in satisfaction of the whole or part, as the case may be, of the sums due to the Company from the Customer under this or any contract.
17.2 The right of termination under Condition 18.1 shall be, without prejudice to any other right or remedy available to the Company. The Company shall be entitled to cancel the Contract and suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for, all of the Supplier’s outstanding invoices to the Customer will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
18. Third Party Rights
18.1 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
19.1 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. Notices sent by post shall be deemed served on the next day which is a day from Monday to Friday and which is not a statutory or public holiday in England (“Working Day”) following posting where the recipient’s address is in Great Britain, or on the seventh Working Day following posting where the recipient’s address is outside of Great Britain. Any notice delivered personally shall be deemed served at the time of personal delivery, provided the same occurs on a Working Day. Any notice sent by fax or e-mail shall be deemed served at the time of transmission provided that the same occurs on a Working Day. To prove service, it is sufficient to prove that the notice was transmitted by fax or e-mail, to the fax number or e-mail address of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
20.1 The Company may assign the Contract or any part of it to any person, firm or company.
20.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
21.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall remain in full force and effect.
22.1 No waiver or delay by the Company in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
23. Law and Jurisdiction
23.1 The Contract shall be construed and governed according to English Law and the Customer agrees to submit to the exclusive jurisdiction of the English Courts.
24. Cumulative Remedies
24.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company, whether under the Contract or otherwise.