TERMS & CONDITIONS
Please note this is purely an acknowledgement of your valued order, which is accepted under the full Terms and Conditions of Sale of ABC Racking (UK) Ltd, trading as ABC. A sales invoice will be rendered for payment purposes, inclusive of Value Added Tax if applicable. Cancellation will only be accepted at the discretion of ABC, and if accepted the cancellation charge could be up to 100% of the order. This order may be dispatched on multiple vehicles which may arrive on different days. Whilst every effort will be made to deliver this order, in the event that ABC is unable to procure raw materials due to circumstances beyond its reasonable control, ABC will not be liable for any costs, claims, direct, special, indirect or consequential losses, liquidated or unliquidated damages, or any other amounts or losses whatsoever which a customer may seek to recover from ABC in relation to failure or delay in delivering this order.
1 Definitions and interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions: â€œContractâ€ means the contract between ABC and the Customer for the supply of Goods and/or Services (incorporating the Quotation and the Order), in accordance with:
(a) these Conditions; and
(b) â€œCustomerâ€ means the person or firm who purchases the Goods and/or Services from ABC;
â€œDelivery Informationâ€ means:
(a) the Delivery Location;
(b) any delivery date(s) for the Goods; and
(c) any performance date(s) for the Services (if applicable);
â€œForce Majeure Eventâ€ means war, armed conflict, acts of terrorism, riots, fire, flood, storm, earthquake, extreme weather, pandemic, disaster, or such other similar events;
â€œGoodsâ€ means the goods (or any part of them) set out in the Quotation;
â€œPriceâ€ means the total price payable by the Customer to ABC for the Goods and/or Services, as set out in the Quotation or varied from time to time in accordance with these Conditions;
â€œServicesâ€ means the installation and/or design services supplied by ABC to the Customer as set out in the Service Specification;
â€œABCâ€ means ABC Racking (UK) Ltd, registered in England and Wales with company number 09985618 and whose registered office is at 5 Highgate Business Centre, Highgate, Birmingham B12 8EA
2 Basis of contract
2.1 As between ABC and the Customer, the process for issuing Quotations and placing and accepting Orders shall be as set out in this:
2.1.1 ABC shall provide a Quotation to the Customer which shall contain, as a minimum, the following details:
(i) details of the Goods;
(ii) the Goods Specification (if any);
(iii) details of the Services (if any);
(iv) the Services Specification (if any);
(v) the Price;
(vi) the Alternative Payment Terms (if any); and
(vii) the Delivery Information;
2.1.2 ABC may at any time following receipt of an Order:
(i) issue written acceptance of that Order to the Customer. The Order shall only be deemed to be accepted when ABC issues written acceptance of the Order at which point and on which date the Contract shall come into existence;
(ii) confirm to the Customer in writing that ABC will not be accepting the Order.
2.2 Any samples, drawings, descriptive matter or advertising issued by ABC and any descriptions of the Goods or illustrations or descriptions of the Services contained on ABCâ€™s website or as provided to you by us are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.3 ABC accepts no responsibility to ensure that the premises upon which goods are to be installed are adequate to withstand the loads imposed and the customer is deemed to warrant that the structural and other parts of the premises are in such strong and fit condition that the services can be carried out safely and are suitable for the ABCâ€™s goods and services and for carrying the loads distributed.
2.4 The Customer further warrants that it will provide suitable access to and possession of the site and all information and facilities required to enable ABC or its subcontractors to perform its obligations.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.7 In the event of a conflict between a Quotation and these Conditions, the Quotation shall prevail only to the extent that the two conflict.
3.1 The Goods are described and as modified by any applicable Goods Specification.
3.2 Customers must check the description and the specification of the Goods before placing their order. 3.3 Although we have made every effort to display the colours and goods accurately, we cannot guarantee that a deviceâ€™s display of colours accurately reflects the colour of the goods. Your goods may vary slightly from those images.
3.4 In case of any goods made to your special requirements, it is your responsibility to ensure that any information or specification you provide is accurate.
3.5 To the extent that the Goods are to be supplied in accordance with a Goods Specification supplied or contributed to by the Customer, the Customer shall indemnify ABC and keep ABC fully and effectively indemnified from and against all Losses suffered or incurred by ABC arising out of or in connection with such contribution (including any alleged or actual infringement of a third partyâ€™s Intellectual Property Rights).
3.6 ABC reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and ABC shall notify the Customer in any such event.
4 Delivery of Goods
4.1 The parties agree and acknowledge that time is not of the essence of the contract and any date or time quoted for delivery or installation is given as an estimate only and ABC shall: 4.1.1 not be liable for any loss or damage howsoever arising by any matter beyond its reasonable control from failure to deliver or carry out installation on or by such stated date or at such stated time;
4.1.2 if found liable for loss or damage arising from failure to deliver on such stated date or at such stated time shall be liable only for loss limited to the excess (if any) over the price of the goods of the cost to the customer of similar goods in the cheapest available market. 4.2 The Customer shall be responsible for unloading (or making suitable arrangements for unloading) goods at the delivery location.
4.3 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location and, unless agreed otherwise between the parties in writing, the Customer shall be responsible for, and shall bear the risk associated with, the off-loading of the Goods at the Delivery Location.
4.4 If the Customer fails to take delivery of the items or fail to give us adequate delivery instructions at the time stated for delivery(otherwise than by reason of any cause beyond your reasonable control or by reason of our fault) then, without prejudice to any other right or remedy available to us, we reserve the right to: 4.4.1 attempt to redeliver the items to you and charge you an additional delivery fee; or 4.4.2 store the items until actual delivery and charge you for the reasonable costs (including insurance) of storage; or 4.4.3 sell the items at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price under the contract or charge you for that shortfall below the price under the contract.
4.5 Whilst we will use reasonable endeavours to deliver the items on the agreed date we will not be liable for any failure to deliver on the stated date or at the stated time.
5 Quality of Goods
5.1 ABC warrants that on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
5.1.1 conform in all material respects with any applicable Goods Specification
5.2 ABC shall, at its option, repair or replace any defective Goods, or refund the price of any defective Goods in full if:
5.2.1 the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 ABC is given a reasonable opportunity of examining such Goods.
5.3 ABC shall not be liable for the Goodsâ€™ failure to comply with the warranty in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow ABCâ€™s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3 the defect arises as a result of ABC following any drawing, design or Goods Specification supplied or contributed to by the Customer (to the extent that the defect relates to such contribution);
5.3.4 the Customer alters or repairs such Goods without the written consent of ABC;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
5.4 The warranty provided under clause 5.1 does not apply to any aspect of the Goods which is provided to ABC by a third party
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by ABC.
6 Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 ABC receives payment in full (in cash or cleared funds) for the Goods and any other goods that ABC has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums;
6.2.2 (if the Customer is a Distributor) it resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4. 6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as ABCâ€™s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on ABCâ€™s behalf from the date of delivery; 6.4 The Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before ABC receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as ABCâ€™s agent.
7 Customerâ€™s obligations
7.1 The Customer shall:
7.1.1 ensure that the terms of the Quotation and any information it provides in the Service Specification and/or the Goods Specification (including the Customer Documentation) are complete and accurate;
7.1.2 co-operate with ABC in all matters relating to the Goods and/or Services;
7.1.3 provide ABC, its employees, agents, consultants and sub-contractors, with access to the Customerâ€™s premises, office accommodation and other facilities as reasonably required by ABC to provide the Goods and/or Services;
7.1.4 prepare the Customerâ€™s premises for the supply of the Goods and/or Services;
7.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; 8.1.6 at all times provide a safe working environment for the Companyâ€™s employers, agents and sub-contractors and will comply with all statutory or other regulations and codes of practice in connection therewith and will indemnify ABC in respect of any loss incurred by ABC due to the Customerâ€™s breach of such warranty.
7.1.7 comply with all applicable laws, including health and safety laws.
7.2 If ABCâ€™s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation:
7.2.1 without limiting or affecting any other right or remedy available to it, ABC shall have the right to suspend delivery of the Goods and/or performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays ABCâ€™s performance of any of its obligations;
7.2.2 ABC shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from ABCâ€™s failure or delay to perform any of its obligations;
7.2.3 ABC shall have the right to alter the delivery date(s) for the provision of the Goods and/or Services and/or the Price to the extent that these are affected by the Customer Default.
8.1 Unless agreed otherwise ABCâ€™s quotation for installation is based upon the works being executed in normal working hours, with full continuity of work so as to allow ABC to carry out the works in an orderly manner and logical sequence to comply with any completion date agreed with the Customer. 8.2 If it becomes reasonably apparent to ABC that the commencement, progress or completion of the works or any party thereof is being or is likely to be delayed for any reason at any time, then upon notification of this by ABC the Customer shall in writing grant an extension of time to ABC as is fair and reasonable for the completion of the works. 8.3 ABC will use reasonable endeavours to accommodate the Customerâ€™s programme of work by making reasonable and practical adjustments to its sequence of work. The Customer agrees that if any additional cost is incurred by the company by reason of rescheduling or interrupting its work for the convenience of the Customer then ABC will be entitled to charge the Customer for all such costs (including indirect and consequential losses) and to recover such charges in accordance. 8.4 The Customer will ensure that the ABCâ€™s employees and agents are able to carry out their work with continuity and without hindrance and any expense incurred by ABC as a result of the Customerâ€™s failure to so ensure will be charged extra.
8.5 ABCâ€™s liability for direct damage to property caused in the course of installation by the negligence or wilful default of ABC or its servants or agents shall not exceed the price payable under the Contract.
8.6 The Customer shall insure to the full value thereof and provide adequate protection for all machinery and equipment of ABC, its servants and agents and all plant, machinery, materials and the Goods on site during the course of the installation and until removal against all loss or damage howsoever caused otherwise than by reason of neglect or default of ABC its servants or agents.
8.7 ABC reserve the right to sub-contract the installation of the Goods or the performance of any other Services required under the Contract. ABC utilises a â€˜sign-offâ€™ process whereby, if signed, the Customer acknowledges and accepts the â€˜deliveredâ€™ is to a good quality level and there is no issue with the work. If signed by a representative of the installation team, it also acknowledges and confirms that it has been installed or performed to regulatory standards (such as S.E.M.A) which we assume all sub-contractors maintain and practice by.
9 Charges and payment
9.1 The price for Goods shall be as set out in the Quotation.
9.2 ABC reserves the right to charge the Customer for all additional costs and charges of packaging insurance, and transport of the Goods, which shall be invoiced to the Customer.
9.3 Unless otherwise agreed between the parties in writing, the charges for Services shall be as set out in the Quotation.
9.4 ABC reserves the right to increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost to ABC of providing the Goods and/or Services that is due to:
9.4.1 any factor beyond the control of ABC (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.4.2 any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or the Goods Specification and/or Service Specification;
9.4.3 any delay caused by any instructions of the Customer in respect of the Goods and/or Services or failure of the Customer to give ABC adequate or accurate information or instructions in respect of the Goods and/or Services.
9.5 The Customer shall pay each invoice submitted by ABC:
9.5.1 within terms in date of the invoice; and
9.5.2 time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (â€œVATâ€). Where any taxable supply for VAT purposes is made under the Contract by ABC to the Customer, the Customer shall, on receipt of a valid VAT invoice from ABC, pay to ABC such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to ABC under the Contract by the due date, then, without limiting ABCâ€™s remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue at 8% per month.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.1 No claim for defect, damage in transit, short delivery or any other deficiency of goods may be made unless:
10.1.1 the goods were signed for as â€˜damaged upon delivery;
10.1.2 such deficiency is notified in writing to the Companyâ€™s accounts department within 3 days of delivery; and 10.1.3 the Company is permitted to verify the same within 7 days of notification of the claim.
10.2 In the absence of any such notification within 7 days of delivery the Customer shall be deemed to have accepted the goods.
10.3 The Customer agrees that if it uses or consumes any part of a delivery it is deemed to have accepted that delivery and to have waived any claim or right to claim against the Company in respect of it.
11 Intellectual property rights
11.1 The Contract does not transfer or grant any interest in Intellectual Property Rights other than as expressly set out in the Conditions. For the avoidance of doubt, ABC is and shall at all times remain the owner of all Intellectual Property Rights in the Goods and the ABC Documentation.
11.2 The Customer:
11.2.1 warrants that the receipt and use of the Customer Documentation in the performance of the Contract by ABC, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party;
11.2.2 shall indemnify ABC and keep ABC fully and effectively indemnified from and against all Losses awarded against or incurred or paid by ABC as a result of or in connection with any claim brought against ABC, its agents, subcontractors or consultants for actual or alleged infringement of a third partyâ€™s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of the Customer Documentation.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers or materials (including the ABC Documentation and Customer Documentation) of the other party.
12.2 Each party may disclose the other partyâ€™s confidential information:
12.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the partyâ€™s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other partyâ€™s confidential information comply with this clause.
12.3 Neither party shall use the other partyâ€™s confidential information for any purpose other than to perform its obligations under the Contract.
13 Limitation of liability
13.1 ABC shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for any losses.
13.2 ABCâ€™s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall in no circumstance exceed the Price.
14 Termination and cancellation of Orders
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of any of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
14.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
14.2 Without affecting any other right or remedy available to it, ABC may terminate the Contract with immediate effect by giving written notice to the Customer if:
14.2.1 the Customer fails to pay any amount due under the Contract on or before the due date for payment;
14.2.2 there is a change of control of the Customer;
14.2.3 the Customerâ€™s financial position deteriorates to such an extent that in ABCâ€™s opinion the Customerâ€™s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15 Consequences of termination
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to ABC all of ABCâ€™s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, ABC shall submit an invoice, which shall be payable by the Customer immediately on receipt.
16 Assignment and other dealings
16.1 ABC may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
17.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.2 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18 Governing law and jurisdiction
18.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.