1.1 In these Conditions:
BUSINESS DAY: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
CONTRACT: the contract between the Purchaser and the Seller for the sale and purchase of the Goods in accordance with these Conditions.
‘PURCHASER’ means Aberla Services Limited, 4B Olympic Park, Olympic Way, Birchwood, Warrington, WA2 0YL, registered in England under number 09458948 and/or any Company within the Group.
‘CONDITIONS’ the terms and conditions set out in this document and on the face of the Order as amended from time to time in accordance with clause 2.3.
‘GOODS’ means the goods (including any instalment of the goods or any of them) described in the Order.
‘GROUP’ means the group of companies referred to in clause 10.0.
‘INSOLVENT’ a party to the Contract is Insolvent if:
- it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (or any re-enactment or amendment thereof) or being a natural person is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 (or any re-enactment or amendment thereof) or being a partnership has any partner to whom any of the foregoing apply; or
- it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that party with one or more other companies or the solvent reconstruction of that party; or
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with its winding up other than for the sole purpose of a scheme for its solvent amalgamation with one or more other companies or its solvent reconstruction; or
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over it; or
- a floating charge holder over its assets has become entitled to appoint or has appointed, an administrative receiver; or
- a person becomes entitled to appoint a receiver over its assets or a receiver is appointed over its assets; or
- being an individual, it is the subject of a bankruptcy petition or order; or
- a creditor or encumbrancer of it attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within ten Business Days; or
- any event occurs, or proceeding is taken, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraphs a to h above (inclusive); or
- it suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
‘ORDER’ means the Purchaser’s purchase order to which these Conditions are annexed.
‘PRICE’ means the price of the Goods.
‘PURCHASER’ means Aberla Services Limited, 4B Olympic Park, Olympic Way, Birchwood, Warrington, WA2 0YL, registered in England under number 09458948 and/or any Company within the Group.
‘SELLER’ means the person so described in the Order.
SPECIFICATION: any specification for the Goods, including any related plans and drawings, that is supplied to the Supplier by the Customer, or produced by the Supplier and agreed in writing by the Customer.
‘SPECIFICATION’ includes any plans, drawings, data or other information relating to the Goods to be provided by the Seller.
‘WRITING’ includes documents delivered by post or hand, facsimile transmission, e-mail and verbal instructions provided they are confirmed in writing by the Purchaser within 48 hours of the date of the verbal instruction.
1.2 Any reference in these Conditions to a statute or statutory instrument shall be construed as a reference to that statute or provision as may be amended, re-enacted or extended at any relevant time.
1.3 The headings in these Conditions are for convenience only and do not affect their interpretation or application.
1.4 Should any of the terms of this Order conflict one with another then the term least favourable to the Purchaser shall apply.
1.5 Should any of the terms of this Order be found to be unenforceable then it shall be severable from the remaining terms and conditions which shall continue to apply.
2.0 BASIS OF PURCHASE
2.1 The Order constitutes an offer by the Purchaser to purchase the Goods subject to these Conditions exclusively.
2.2 These Conditions shall apply to the Contract to the exclusion of all other terms and conditions on which any quotation (offer) has been given to the Purchaser or subject to which the Order is accepted or purported to be accepted by the Seller. For the avoidance of doubt, in accepting this Order whether by conduct or by written notification, the Seller agrees that the exclusive terms of this Order shall apply to the Contract between the Purchaser and the Seller.
2.3 No variation to the Order or these Conditions shall be binding on either party unless agreed in Writing by the Purchaser.
3.1 The Quantity, Quality and Description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable or referenced Specification supplied by the Purchaser to the Seller or agreed in Writing by the Purchaser. The Goods shall be of satisfactory quality, free from defects and fit for their intended purpose.
3.2 Any Specification supplied by the Purchaser to the Seller, or specifically produced by the Seller for the Purchaser, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Purchaser. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is required for the purpose of this Contract.
3.3 The Seller shall comply with all applicable regulations, by-laws or other legal requirements concerning the manufacture, packaging and delivery of the Goods. The Seller shall also comply with all reasonable requests made by the Purchaser for the nature of packaging, off loading, time and date of delivery for the Goods.
3.4 The Seller shall not unreasonably refuse any reasonable requests by the Purchaser (or his representatives) to inspect and test the Goods during the manufacture, processing or storage at the premises of the Seller or any third party prior to dispatch, and the Seller shall provide the Purchaser (or his representatives) with all facilities necessary or reasonably required for inspection and testing purposes including but not limited to all manufacturers literature and test sheets applicable to the Goods being supplied.
3.5 If as a result of inspection or testing the Purchaser is not satisfied that the Goods will comply in all respects with the Contract, and the Purchaser so informs the Seller within 7 days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.
3.6 Should the Seller fail to take such steps to ensure compliance in accordance with Condition 3.5 above then the Purchaser shall be entitled by Written Notice to terminate the Contract immediately without obligation to take possession of or pay for the Goods and/or without any liability whatsoever for compensation, cancellation costs, storage costs or any third party costs.
3.7 The Goods shall be marked in accordance with the Purchaser’s instructions and any applicable regulations or requirements of any carrier, and shall be properly protected, packed and secured so as to reach their destination in an undamaged and fit condition.
3.8 The Seller shall be responsible for the insurance of the Goods up to and including the point of their unloading and positioning and shall indemnify the Purchaser against the partial or total loss of the Goods whether in transit, storage or at the delivery address and the Seller shall further indemnify the Purchaser against all liabilities arising under its own Contract of Employment for the failure to deliver the Goods for any reason whatsoever.
4.0 PRICE OF THE GOODS AND SERVICES
4.1 The price of the Goods shall be as stated in the Order and unless otherwise so stated shall be:
4.1.1 exclusive of any applicable value added tax (which shall be payable by the Purchaser upon the receipt of a proper and authentic VAT invoice) subject to the other payment terms and always provided that the Seller has provided the Purchaser with all necessary documentary and lawful evidence that he is entitled to the payment of VAT.
4.1.2 The price shall also be inclusive of all charges for packaging, shipping, carriage, insurance and any taxes, duties, imports or levies other than value added tax.
4.2 No increase in the Price may be made whether on account of increased material, labour or transport costs, fluctuation in rates of exchange, taxation changes (other than VAT) or otherwise.
4.3 The Purchaser shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own Terms and Conditions of sale and/or whether or not expressly stated within these Order terms and conditions.
5.0 TERMS OF PAYMENT
5.1 The Seller shall be entitled to invoice the Purchaser upon the completion and satisfactory performance of the Order for the Goods. It shall be a condition precedent to payment that each invoice shall quote the number of the Order, shall state the correct price and that the Seller shall have provided the detail required by Condition 4.1.1 or elsewhere in this Order.
5.2 The Purchaser shall pay the Price of the Goods following 60 days from the end of the month of the receipt by the Purchaser of a proper invoice in accordance with Condition 5.1 and provided the Seller has fully complied with all the provisions and Conditions of this Order.
5.3 The Purchaser shall be entitled to set off against the Price any sums owed to the Purchaser by the Seller under this or any other Contract whether arising before or after the date of this Order and shall further be entitled to deduct from the Order Price a sum equivalent to 5% of the Order Value for every day that the Goods and Services are supplied or performed late by the Seller.
6.1 The Goods shall be delivered to the Delivery Address on the date or within the period stated in the Order, in either case during the Purchaser’s business hours.
6.2 Where the date for the delivery of the Goods is not specified within the Order, the Purchaser shall give the Seller reasonable written notice of the date required for the delivery of the Goods and the Seller shall forthwith comply as if the date had formed a part of the Order.
6.3 For the avoidance of doubt Time is of the essence in respect of this Contract.
6.4 A packing note quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently and a copy signed by a representative of the Purchaser must accompany each Invoice rendered by the Seller as a condition precedent to payment.
6.5 If the Goods to be delivered are by instalments, then for the purpose of the Contract, Delivery will not be treated as complete until the Goods are fully delivered and in all respects and in full compliance with the terms of this Order.
6.6 The Purchaser shall be entitled to reject any Goods delivered which are not in accordance with the Order, and shall not be deemed to have accepted any Goods until the Purchaser has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any defect of any nature in the Goods has become apparent.
6.7 The Seller shall supply the Purchaser in good time with any instructions or other information required to enable the Purchaser to accept delivery of the Goods.
6.8 The Purchaser shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are acceptable by the Purchaser.
7.0 RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Purchaser in accordance with Condition 3.8.
7.2 The title in the Goods shall pass to the Purchaser upon delivery, unless payment for the Goods is agreed by the Purchaser to be made prior to delivery in which case it shall pass to the Purchaser once payment has been made by the Purchaser. Where payment is made by the Purchaser prior to delivery it shall not remove the other liabilities arising under this Order to the Seller including the provisions of Condition 3.8.
8.0 WARRANTIES AND LIABILITY
8.1 The Seller warrants to the Purchaser that the Goods
8.1.1 will be of satisfactory quality and fit for any purpose held out by the Seller or made known to the Seller whether or not in Writing at the time the Order is placed:
8.1.2 will be free from defects in all respects including but not limited to design, material and workmanship:
8.1.3 will correspond with any relevant Specification or sample; and
8.1.4 will comply with all statutory requirements and regulations.
8.2 The Seller warrants to the Purchaser that any services provided ancillary to the supply of the Goods including but not limited to off site fabrication, assembly, or commissioning will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Purchaser to expect in all the circumstances.
8.3 Without prejudice to any other remedy if any Goods are not applied or performed in accordance with the Contract, then the Purchaser shall be entitled:
8.3.1 to require the Seller to repair the Goods or to supply replacement Goods in accordance with the Contract within 7 days: or
8.3.2 at the Purchaser’s sole option, and whether or not the Purchaser has previously required the Seller to repair the Goods or to supply any replacement Goods or Services, to treat the Contract as repudiated by the Sellers breach and require the refund of any part of the Price which has been paid.
8.4 The Seller shall indemnify the Purchaser in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Purchaser as a result of or in connection with:
8.4.1 breach of any warranty given by the Seller in relation to the Goods;
8.4.2 any claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design, trade mark or other intellectual rights of any other person.
8.4.3 any liability under the Consumer Protection Act, Data Protection Act or any re-enactment of them in relation to the Goods.
8.4.4 any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering and installing the Goods; and
8.4.5 any act or omission of any of the Seller’s personnel in connection with the performance of the Order.
8.5 Neither the Seller nor the Purchaser shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligation in relation to the Goods, if the delay or failure was due to one of the following;
8.5.1 Force Majeure, explosion, flood, tempest, or fire.
8.5.2 war or an outbreak of hostilities, sabotage, insurrection, terrorism, civil disturbance or riotous assembly;
8.5.3 Subsequent acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the British Government or any local authority;
8.5.4 import or export regulations or embargoes.
8.6 The Seller shall carry suitable Public Liability insurance to a level of at least £5 Million in each and every claim and shall indemnify the Purchaser against any damage to persons or property caused by the Seller his servants or agents in the performance of the duties set out in this Order.
9.1 The Purchaser shall be entitled to cancel the Order in respect of all or part only of the Goods by giving notice to the Seller at any time prior to delivery, in which event the Purchaser’s sole liability shall be to pay to the Seller the actual cost of the Goods up to the date of Termination except where the Termination is due to the Sellers failure to comply with the Order and/or the Sellers breach of the Contract terms.
9.2 The Purchaser shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
9.2.1 The Seller is Insolvent
9.2.2 the Purchaser reasonably apprehends that the Seller is about to become Insolvent and notifies the Seller accordingly.
10.1 The Purchaser is a member of the group of companies (‘GROUP’) whose holding company is [ ] and accordingly the Purchaser may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of the Group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Purchaser.
10.2 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
10.3 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 required office or principal place of business or such other address as may be at the relevant time have been notified pursuant to this provision to the party given the notice.
10.4 No waiver by the Purchaser of any breach of the Contract by the Seller shall be considered as a waiver of any previous or subsequent breach of the same or any other provision.
10.5 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 and the remainder of the provision in question shall not be affected thereby.
10.6 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to the exclusive jurisdiction of the Courts of England and Wales.
10.7 The Contract shall be governed by the laws of England.
10.8 No right whatsoever shall be given to any third party in the Contract between the Purchaser and the Seller which might otherwise have been afforded under the Contracts (Rights of Third Party) Act 1999, unless expressly agreed in Writing by the Purchaser and Seller.