ATKEY AND COMPANY LIMITED – TERMS AND CONDITIONS
1.1 “Buyer” means the person or company named in the quotation who buys or agrees to buy the goods from the Seller
1.2 “Despatch” means the date and time at which the goods leave the premises of the Seller.
1.3 “Premises” means the address nominated by the Buyer for delivery of the goods.
1.4 “Price” means the price for the goods in accordance with the quotation, or variation thereof, agreed in writing between the Seller and the Buyer.
1.5 “Seller” means Atkey and Company Limited.
2.1 Any quotations made by the Seller shall amount to an invitation to the Buyer to make an offer on the terms set out in such quotation. All quotations are given subject to the right of the Seller to alter or withdraw the same without notice. A binding contract between Seller and the Buyer shall only arise upon acceptance by the Seller of the Buyer’s offer and such contract shall be subject to the terms and conditions stated herein.
2.2 No conditions or stipulations in or attached to the Buyers form of order which are inconsistent with these conditions or which purport to add or modify these conditions in any way shall have any effect.
2.3 Prices quoted are based on the cost of material, labour, transport prevailing at the date of quotation and in the event of any variation in such costs occurring before the date of despatch the Seller reserves the right to adjust the price accordingly.
2.4 Unless otherwise stated the Seller’s quoted prices do not include any provision for Value Added Tax (VAT) or for any other Inland Revenue charges and the quotation is made on the basis that the Buyer will pay such tax duty or charge.
2.5 The quotation is subject to the availability of labour and materials.
2.6 Unless otherwise stated all quotations are valid for a period of 30 days.
3.1 Where a Buyer holds a credit account with the Seller, payment shall be made in full within 30 days of receipt of the goods/invoice by the Buyer.
3.2 Upon acceptance of a quotation all Buyers not covered by section 3.1 shall pay to the Seller, by way of deposit, 35% of the Price plus VAT. Should the Buyer fail to pay such deposit the Seller shall (without prejudice to any other rights the Seller may have) be entitled to rescind the Contract with immediate effect. Payment of the balance of the Price plus VAT shall be due 5 days prior to collection/delivery.
3.3 In default of payment within the said period the Seller may charge interest of 10% per annum or 5% over the current base rate of the Bank of England, whichever is the higher, on all money overdue.
3.4 Payment on the due date shall be regarded as a fundamental term of the contract and failure by the Buyer to comply therewith shall entitle the Seller to treat the contract as suspended by the Buyer.
4.1 Unless otherwise agreed in writing the Seller shall deliver the goods to the Premises. Delivery shall be deemed to have taken place at the moment when the vehicle transporting the goods enters the boundary of those premises.
4.2 Any delivery dates or times set out are estimates only and while the Seller will make all reasonable efforts to deliver the goods within the time or times agreed the Seller will not be responsible for any losses caused to the Buyer as a result of late delivery.
4.3 Time of delivery shall not be the essence of the contract between the Buyer and the Seller.
4.4 The Seller shall be entitled to deliver the goods in one or more consignments unless expressly agreed otherwise.
4.5 If the Buyer fails to take delivery of the goods at the time specified, or if the Buyer has failed for fourteen days to give delivery instructions after the same have been requested by the Seller, the Seller may, without prejudice to its other rights, charge the Buyer with the cost of storage from the date the goods were tendered for delivery, the cost of any additional transport and a sum equal to any loss suffered by the Seller in any resale caused by the Buyer’s default.
5.1 The legal and beneficial ownership of the goods and the property therein shall remain in the Seller and shall not pass to the Buyer until such time as the Seller shall have received the benefit of payment of the whole of the price.
5.2 Until such time as the legal and beneficial ownership of the goods therein have passed to the Buyer, the goods shall be at the Buyers risk while they are in the Buyer’s possession or under the Buyer’s control and the Buyer shall indemnify the Seller from and against any loss of or damage to the goods by payment in full of the price thereof and from and against all claims and demands arising out of injury or damage by or attributable to the goods.
5.3 If the goods lose their identity by becoming part of other goods then the Buyer shall store such other goods separately, so marked as to be identifiable as being made from or the with the Seller’s goods, at which point in time the Seller shall be become owner or part owner (as the case may be) of such goods which shall themselves be subject to the provisions of this clause in respect of the Seller’s interest therein.
5.4 The Buyer may sell the Goods before property in them shall have passed to the Buyer if such sale is in the ordinary course of the Buyer’s business and is at a price which shall not (without the Seller’s prior agreement in writing) be the amount owing by the Buyer to the Seller. In such event: –
5.4.1 the sale shall be deemed to have been effected by the Buyer as agent for the Seller who shall be beneficially entitled to the proceeds of sale;
5.4.2 the Buyer shall pay to the Seller out of the proceeds of sale all amounts owing to the Seller;
5.4.3 until such payment to the Seller has been made the Buyer shall retain such proceeds of sale in a separate account.
5.5 The Buyer’s right to sell the Goods under clause 5.4 shall cease as soon as the Seller shall have requested the return of the Goods under clause 5.6
5.6 Until such time as property in the Goods passes from the Seller the Buyer shall on request deliver up such Goods as have not ceased to be in existence or resold to the Seller and if the Buyer fails to do so the Seller may enter upon the Premises or any other premises owned occupied or controlled by the Buyer where the Goods are situated and repossess them.
5.7 The Buyer shall not pledge or in any way charge by way of security for indebtedness of the Buyer or any other person any of the Goods which are the property of the Seller and (without prejudice to the other rights of the Seller) if the Buyer shall purport to do so all sums whatsoever owing by the Buyer to the Seller shall forthwith become due and payable immediately.
5.8 The Buyer shall insure and keep insured the Goods to an amount equal to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date the property passes from the Seller who may (without prejudice to any other rights of the Seller) recover the same plus VAT and interest.
5.9 If the Buyer fails to insure the Goods in accordance with clause 5.8 all sums whatsoever owing by the Buyer to the Seller shall forthwith become due and payable to the Seller who may (without prejudice to any other rights of the Seller) recover the same plus VAT and interest.
6.1 Either party may immediately terminate the contract or suspend future deliveries if the other becomes bankrupt, or makes an assignment agreement or composition with its creditors, or suffers distress or process of execution to be levied on its property, or goes into liquidation either compulsory or voluntarily (except for the purpose of reconstruction or amalgamation). Similar rights are reserved to the parties if it appears to either party that it is probable or likely that any of the above events will be occur.
6.2 Without prejudice to any other rights or remedies under the contract either party may terminate this contract or suspend future deliveries if the other fails to comply with any of its obligations hereunder and such failure had not been remedied within thirty days of notification to the other of such breach. The innocent party will be able to recover any loss or damage directly flowing from any suspension or termination under the clause 7.2
6.3 In the event of the Buyer, for reasons other than those provided for in the above clauses, terminating the contract, the Buyer shall be liable to the Seller for any costs or charges incurred by the Seller by reason of such termination together with all costs incurred by the Seller up to the date thereof and any difference between the price charged and the price at which the Seller is able to sell the goods elsewhere.
7. Limitation of Liability
7.1 The Seller’s liability (save in the case of liability in respect of death or personal injury resulting from the Seller’s negligence) is limited to an amount equal to the Price of the goods.
7.2 The Buyer shall be deemed to have inspected the goods on delivery and any claim that the goods are not in accordance with the quotation or any allegation that the goods are of faulty design material or workmanship shall be made in writing to the Seller within forty eight hours of the date of delivery of the goods to the Buyer and if no such claim is made the goods shall be deemed to have been accepted by the Buyer as being in accordance with the quotation.
7.3 The Seller shall not be liable for any consequential loss or damage suffered by the Buyer whether direct or indirect.
7.4 Any failure by the Seller to make any delivery on the contractual date for delivery shall not entitle to the Buyer:
to refuse delivery after such date;
to repudiate the contract;
to make a claim for damages for late delivery
7.5 Where any materials have been supplied or installed by the Seller, should such materials prove faulty through defective material or workmanship of the Seller during the period of twelve months from delivery, the defective items will be replaced or repaired free of charge. Such liability shall be conditional upon the Buyer giving notice to the Seller, in writing, within 7 days of the discovery of the said defect and upon the Buyer returning such goods to the Seller at the Seller’s own request for alteration, repair or examination unless written authorisation is given by the Seller for the alteration, repair or examination elsewhere.
7.6 The Seller does not accept liability to the Buyer for any consequential loss where the goods have proved to be defective or where they have not been installed correctly.
8. Warranties and Conditions
Any recommendation or suggestion relating to the use of goods made by the Seller either in technical literature or in response to specific enquiry by the Buyer is given in good faith but it is for the Buyer to satisfy himself of the suitability of the goods for his own particular purpose of which the Seller has no knowledge.
9.1 The illustrations in Sellers promotional literature and documentation and any demonstration doors used to demonstrate the workings of the product and its composition are only a guide to products and are not to scale. The Seller reserves the right to make minor modifications in design, specification or composition, as it shall think fit. Timber is a natural product with each piece being unique and as such is subject to variation in colour and grain. The Buyer accepts that minor imperfection/variation in profile, colour & finish are not defects.
10. Variations and Cancellations
10.1 A charge will be made for any additional drawing office, detailing, shop work and materials involved if variations are made. Any delivery commitments previously entered into will be void.
10.2 Cancellations will only be accepted on the understanding that all costs incurred by the Seller will be reimbursed in full. These costs shall date from receipt of a letter of intent or official order, whichever is the earlier.
11.1 The Seller may licence or sub-contract all or any part of its obligations under the contract without the Buyer’s consent but this shall not in any way release the Seller of its obligations to the Buyer under the contract.
11.2 Nothing in the contract shall confer or purport to confer upon any third party any benefit or right against the Seller.
12. Force Majeure
12.1 Neither party shall be liable for any default due to act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest, or any event beyond their reasonable control.
13. Governing Law
13.1 This agreement is governed by and to be construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.