Terms and conditions for sale of goods
The Buyer’s attention is particularly drawn to Clause 12
1. Definitions
Seller Advanced Ventilation Systems Ltd
Unit U9 Rudford Industrial Estate
Church Lane
Ford
West Sussex
BN18 0BD
Buyer the person or company who buys or agrees to buy the goods from the Seller.
Conditions the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.
Goods the items which the Buyer agrees to buy from the Seller as set out in the Schedule.
Price the price for the Goods, excluding VAT and any carriage, packaging and insurance costs.
Force Majeure Event has the meaning set out in clause 11.
2. Conditions
2.1 These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of Goods, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods from the Seller pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 These Conditions may not be varied except by the written agreement of the Seller.
2.5 These Conditions represent the whole of the agreement between the Seller and the Buyer. They supersede any other conditions previously issued.
2.6 No order which has been accepted by the Seller may be cancelled or amended by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials), damages, charges and expenses incurred by the Seller as a result of such cancellation or amendment.
3. Price
The Price shall be either as previously submitted in writing or as per previously submitted price as part of a price list or as confirmed within a formal confirmation of order.
4. Payment and Interest
4.1 Payment of the Price and VAT shall be due within 30 days nett end of month of the Seller’s invoice unless agreed otherwise in writing by the seller.
4.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 3% per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any judgment.
4.3 The Buyer shall pay all accounts in full and not exercise any rights of set-off or counter-claim against invoices submitted by the Seller.
5. Goods
5.1 The Goods are described in the Schedule.
5.2 The Seller reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.
6. Warranties
The seller warrants the product for a 1 year period commencing the date of delivery of the Goods (Warranty Period). Extended warranties in terms of finishes such as Powder Coating or Anodising may be available but would need to be agreed in writing prior to order and not retrospectively and would require full compliance with third party applicators cleaning and maintenance guidelines/procedures. Notwithstanding this the goods shall:
6.1 Conform with their description.
6.2 Be free of defects in materials and workmanship
6.3 Be of satisfactory quality with the meaning of the Sale of Goods Act 1979
The above Warranty will cover in the event of an acceptable and legitimate complaint regarding defects in the goods supplied that AVS will undertake to either repair or replace these items. The buyer shall be responsible for returning any defective items to the premises of AVS or other if specifically requested by the seller. This warranty relates exclusively to the product itself and not to its installation, accordingly costs incurred in removal and re-fitting of the product are not covered by this warranty.
AVS’s maximum liability will be deemed to be fulfilled with the re-supply or repair of the defective items. Under no circumstances will AVS be held liable for any other tangible or intangible loss including consequential losses. Please refer also to section 12 of our terms and conditions in respect of Limitations of Liability.
The following cases are excluded from the product Warranty:
6.1 Wilful or intentional damage or damage caused by gross misconduct.
6.2 Damage as a result of transport, handling or storage either at the premises of the buyer or at their site address.
6.3 Failure to report damage within 48 hours of the receipt of goods.
6.4 Damage that does not affect the aesthetic appearance of the product.
6.5 Failure to meet full payment obligations towards AVS.
6.6 Improper use – This shall be understood as any misuse, unsafe behaviour, wrong or forced use and un-prescribed adjustments or alterations/modifications to the goods and or parts thereof.
6.7 Minor faults or deviations in the quality of a product which do not affect the product’s value or fitness for its intended purpose.
6.8 Any modifications made to the product by the Buyer.
6.9 Any defects caused as a result or attributed to installation by the Buyer.
6.10 Defects caused due to installations where environmental conditions cause damage to either the surface finish or substrate beneath that were not known to the seller at point of order or prior to order.
6.11 Colour variations that may be the result of batch variations from powder coating suppliers and surface finish effects such as ‘orange peeling’ that may occur due to specified coating thicknesses. A degree of orange peel may be apparent in the coating this will not detract from the performance of the coating in service.
6.12 Powder Coating surface finish visual defects viewed in normal lighting conditions at an oblique angle (such as blisters, craters, pin holes and scratches) from less than 1 metre. (In line with BS6496).
6.13 Use beyond the scope of the products intended application that is not identified within the data sheets published.
7. Delivery of the Goods
7.1 Delivery of the Goods shall be made to the Buyer’s address or nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery.
7.2 The Seller undertakes to use its reasonable endeavours to despatch the Goods on an agreed delivery date, but does not guarantee to do so. Time of delivery shall not be of the essence of the contract.
7.3 The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods. If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the contract, and a pro-rata adjustment to the Price shall be made.
7.4 If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are ready for despatch, the Seller shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of so doing.
8. Acceptance of the Goods
8.1 The Buyer shall be deemed to have accepted the Goods 1 day after delivery to the Buyer.
8.2 The Buyer shall carry out a thorough inspection of the Goods within 24 hours of delivery and give notice in writing to the seller after discovering that some or all of the goods do not comply with the Warranty above, the Buyer must return the Goods to the Seller at the Buyer’s cost and the Seller shall, at its option, repair or replace any Goods that are defective, or refund the price of such defective Goods.
8.3 Where the Buyer has accepted, or has been deemed to have accepted, the Goods the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
8.4 Shortages should similarly be reported within 24 hours of delivery.
9. Title and risk
9.1 Risk shall pass on delivery of the Goods to the Buyer’s address.
9.2 Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Seller and shall not pass to the Buyer until the amount due under the invoice for them (including interest and costs) has been paid in full.
9.3 Until title passes the Buyer shall hold the Goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Seller.
9.4 The Seller may at any time before title passes and without any liability to the Buyer:
9.4.1 repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them; and
9.4.2 for that purpose (or determining what if any Goods are held by the Buyer and inspecting them) enter any premises of or occupied by the Buyer.
9.5 The Seller may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.
10. Carriage of Goods
Carriage may be applicable and will be either as previously submitted in writing or as per previously submitted price as part of a price list or as confirmed within a formal confirmation of order.
11. Force Majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, interference by civil of military authorities, national or international calamity, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, epidemic or similar events, or default of suppliers or subcontractors.
11.2 The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Seller from providing any of the Goods for more than 8 weeks, the Seller shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
12. Limitation of Liability: THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 fraud or fraudulent misrepresentation;
12.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
12.1.4 defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1:
12.2.1 the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
12.2.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £5000 or the order value of items supplied whichever is the lesser sum.
12.3 After the Warranty Period, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13. General
13.1 Notices.
13.1.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax [or e-mail].
13.1.2 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
13.2 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.3 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.5 This Contract contains the entire agreement and understanding of the parties relating to the subject matter of this Contract and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.
13.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Seller.
13.7 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).