TERMS AND CONDITIONS
| 1 |
GENERAL |
| 1.1 |
In these Conditions: |
| 1.1.1 |
The Following expressions shall have
the following meanings: |
| "Buyer" |
the individual firm company or other party from
whom an order to supply Goods is received by ACS. |
| “Conditions” |
the standard terms and conditions of sale of ACS as
set out herein and includes any additional terms and conditions of sale agreed
by ACS. |
| “Contract” |
a contract for the supply of Goods to the Buyer.
|
| “Date of Delivery” |
the date on which the delivery of the Goods takes
place pursuant to Condition 6.
|
| DOA Period” |
the period during which a third party manufacturer
will offer to automatically replace defective Goods without exercising any
option to repair them
|
| “Goods” |
the goods which ACS is to supply under the
Contract.
|
| “ACS” |
ACS Systems UK Limited and any subsidiary or
holding company or associate (as defined in the Companies Act 1985 (as amended)
of the said company.
|
| 1.1.2 |
Words importing the singular number shall
include the plural and vice versa, words importing one gender shall include all
genders, and words importing persons shall include bodies, corporate,
unincorporated associations and partnerships. |
| 1.2 |
If satisfactory references on the Buyer are not
provided within 7 days of a request therefor by ACS, ACS may terminate the
Contract without liability. |
| 1.3 |
ACS reserves the right to assign or sub-contract
the Contract or any part thereof. The Buyer shall not be entitled to assign the
benefit of the Contract without the consent in writing of ACS.
|
| 1.4 |
If at any time one or more of the provisions or
part thereof of these Conditions becomes or is held by a court to be invalid,
illegal or unenforceable in any respect under any law, the validity and
enforceability of the remaining provisions shall not in any way be impaired
thereby.
|
| 1.5 |
No waiver by ACS of any breach of any provisions
of the Contract by the Buyer shall be considered as a waiver of any subsequent
breach of the same or any other provision and ACS shall not be prejudiced by
any forbearance or indulgence granted by it to the Buyer. |
| 2 |
ORDERS, ACKNOWLEDGEMENTS AND VARIATIONS |
| 2.1 |
Notwithstanding that ACS may have given a
detailed quotation or estimate either verbally or in writing no order shall be
binding on ACS unless and until it has been acknowledged in writing by ACS or
the Goods are delivered by ACS to the Buyer pursuant to the order. |
| 2.2 |
These Conditions are incorporated in the
Contract and contain the entire obligations between ACS and the Buyer. No
order, letter, terms and conditions or form or contract sent or referred to by
the Buyer to ACS, whatever may be their respective dates shall form part of the
Contract. In the event of ACS entering into the Contract without ACS having
submitted a written quotation or other letter or document incorporating or
referring to these Conditions but in circumstances where the Buyer has had
prior notice of these Conditions then all Goods supplied shall be subject to
these Conditions.
|
| 2.3 |
No variation of the Contract by the Buyer shall
be binding upon ACS unless made in writing and signed on behalf of ACS. |
| 2.4 |
Any representations (except fraudulent
misrepresentations) or warranties made by or on behalf of ACS prior to the
Contract (whether verbally or in writing, including without limitation, any
catalogue published by ACS or by any other person) are hereby expressly
excluded and shall be of no effect.
|
| 3 |
DESCRIPTION |
| 3.1 |
To enable ACS to pursue its policy of continuous
improvement of its products ACS reserves the right to amend the specification
of the Goods from time to time whether before or after the making of the
Contract.
|
| 4 |
DESIGNS AND INTELLECTUAL PROPERTY |
| 4.1 |
Unless otherwise agreed in writing, ACS will be
the sole owner of the copyright and all other intellectual property rights in
all documents and drawings made or produced by it in preparing a quotation for
the Buyer or in the course of work on any Contract with the Buyer. |
| 5 |
PRICE |
| 5.1 |
ACS shall be entitled to adjust the contract
price of the Goods whether before or after the making of the Contract in the
event of any variation in the cost to ACS of supplying the same or any part
thereof caused by any reason whatsoever beyond the control of ACS and ACS’s
written certificate of such variation shall be conclusive evidence of such
variation and the extent thereof.
|
| 5.2 |
Unless otherwise stated, the price set out in
ACS’s quotation does not include VAT nor the cost of packaging, loading,
carriage, insurance, off-loading or installation which should be arranged by
the Buyer at its sole risk and expense. |
| 6 |
DELIVERY |
| 6.1 |
Delivery of Goods shall be deemed to be effected
by ACS at the following times:
|
| 6.1.1 |
Where Goods are delivered by ACS, when the same
arrive prior to unloading at the Buyer’s premises or at the premises nominated
by the Buyer or at the nearest accessible road point to such premises. |
| 6.1.2 |
Where Goods are delivered by an independent
carrier, at the time of loading onto the carrier’s vehicle.
|
| 6.1.3 |
Where Goods are to be collected by or on behalf
of the Buyer by its servants or agents, when the same are collected or when ACS
notifies the Buyer that the same are ready for collection, whichever is
earlier. |
| 6.2 |
Whilst ACS will make every reasonable effort to
complete the Contract by the date(s) therein specified for delivery of Goods
such date(s) shall only constitute the times by which ACS expects to effect
such delivery but the time for performance of the Contract by ACS shall not be
of the essence of the Contract, ACS’s failure to so deliver by the due date(s)
shall not constitute a breach of Contract and ACS shall not in any
circumstances be responsible for any direct or consequential loss or damage of
any kind whatsoever resulting therefrom. ACS may wholly or partly suspend
deliveries of Goods and the Buyer shall accept late delivery of such Goods
unless the Buyer has cancelled the Contract in accordance with the provisions
of Condition 9.2.
|
| 7 |
quantities instalments and storage |
| 7.1 |
Where Goods are delivered by instalments each
instalment shall be deemed to be sold under a separate Contract and no default
in respect of any one instalment shall affect due performance of the Contract
as regards other instalments. |
| 7.2 |
ACS will endeavour to deliver the quantity of
Goods ordered. If there is a surplus or shortage of Goods which is so slight
that it would be unreasonable for the Buyer to reject delivery of them the
Buyer shall be deemed to have accepted the Goods and shall pay for the actual
quantity delivered.
|
| 7.3 |
The Buyer shall indemnify and keep indemnified
ACS in full against all costs, losses, damages and expenses whatsoever arising
in connection with the storage of the Goods if ACS shall be prevented from
delivering any of the Goods in accordance with the Contract as a result of
delay or default on the part of the Buyer or any reason beyond ACS’s reasonable
control and such costs, losses, damages and expenses will be added to and form
part of the price of the Goods. ACS shall be entitled in its absolute
discretion and without giving prior notice to the Buyer at the expiration of 3
months to sell or otherwise dispose of Goods kept in storage.
|
| 8 |
RISK AND TITLE |
| 8.1 |
The Goods are at the risk of the Buyer from the
time of delivery.
|
| 8.2 |
Ownership of the Goods shall not pass to the
Buyer until ACS has received in full (in cash or cleared funds) all sums due to
it in respect of:
|
| 8.2.1 |
the Goods; and |
| 8.2.2 |
all other sums which are or which become due to
ACS from the Buyer on any account. |
| 8.3 |
Until ownership of the Goods has passed to the
Buyer, the Buyer must: |
| 8.3.1 |
hold the Goods on a fiduciary basis as ACS’s
bailee |
| 8.3.2 |
store the Goods (at no cost to ACS) separately
from all other goods of the Buyer or any third party in such a way that they
remain readily identifiable as ACS’s property; |
| 8.3.3 |
not destroy, deface or obscure any identifying
mark or packaging on or relating to the Goods; |
| 8.3.4 |
maintain the Goods in satisfactory condition
and keep them insured on ACS’s behalf for their full price against all risks to
the reasonable satisfaction of ACS. On request the Buyer shall produce the
policy of insurance to ACS; and |
| 8.3.5 |
hold the proceeds of the insurance referred to
in Condition 8.3.4 on trust for ACS and not mix them with any other money, nor
pay the proceeds into an overdrawn bank account. |
| 8.4 |
The Buyer may resell the Goods before ownership
has passed to it solely on the following conditions: |
| 8.4.1 |
any sale shall be effected in the ordinary
course of the Buyer’s business at full market value; and |
| 8.4.2 |
any such sale shall be a sale of ACS’s property
on the Buyer’s own behalf and the Buyer shall deal as principal when making
such a sale. |
| 8.5 |
The Buyer’s right to possession of the Goods
shall terminate immediately if:
|
| 8.5.1 |
An order is made or a resolution is passed for
the winding-up of the Buyer or an order is made for the appointment of an
administrator to manage the affairs, business and property of the Buyer or such
an administrator is appointed or documents are filed with the court for the
appointment of an administrator or notice of intention to appoint an
administrator is given by the Buyer or its directors or by a qualifying
floating charge holder (as defined in paragraph 14 of Schedule B1 to the
Insolvency Act 1986), or a receiver and/or manager or administrative receiver
is appointed in respect of all or any of the Buyer’s assets or undertaking or
circumstances arise which entitle the court or a creditor to appoint a receiver
and/or manager or administrative receiver or which entitle the Court to make a
winding-up or bankruptcy order or the Buyer takes or suffers any similar or
analogous action in consequence of debt or the Buyer ceases to trade; or |
| 8.5.2 |
ACS reasonably apprehends that any of the
circumstances in Condition 8.5.1 is about to occur in relation to the Buyer and
notifies the Buyer accordingly; or |
| 8.5.3 |
if the Buyer commits a material breach of any
of the terms of the Contract or any other contract between the Buyer and ACS
fails to remedy the same within 7 days of being notified of the breach; |
| 8.5.4 |
the Buyer encumbers or in any way charges any
of the Goods; or |
| 8.5.5 |
anything analogous to the foregoing occurs in
any other jurisdiction. |
| 8.6 |
ACS shall be entitled to recover payment for the
Goods notwithstanding that ownership of any of the Goods has not passed from
ACS. |
| 8.7 |
The Buyer grants ACS, its agents and employees
an irrevocable licence at any time to enter any premises where the Goods are or
may be stored in order to inpsect them, or, where the Buyer’s right to
possession has terminated, to recover them. |
| 9 |
TERMS OF PAYMENT |
| 9.1 |
Unless otherwise agreed the price shall be due
and payable at ACS’s offices in sterling within 30 days after the date of ACS’s
invoice provided that ACS reserves the right to require payment prior to
delivery of the Goods or in sending notification that the Goods are in a
deliverable state or if the Buyer has previously failed to make any payment
owing to ACS on the due date. Time for payment shall be of the essence. |
| 9.2 |
If the Buyer does not pay the whole or any part
of the price by the due date then the Buyer shall pay to ACS interest on the
amount outstanding from the due date until the actual date of payment at the
rate of 2% p.a. over the base rate of Barclays Bank plc from time to time in
force which shall accrue on a daily basis. |
| 9.3 |
So long as any payment due from the Buyer to ACS
is outstanding, whether under the same or any other Contract or transaction,
ACS shall have a general lien on any Goods and any other property of the Buyer
in its possession for whatever purpose and whether worked upon or not. ACS
shall be entitled on the expiration of not less than 14 days notice in writing
to the Buyer to dispose of such property and to apply the proceeds towards
satisfaction of such debts. |
| 9.4 |
The Buyer shall not be entitled to withhold
payment of any amount due to ACS by reason of any disputed claim by the Buyer
in connection with the Contract nor shall the Buyer be entitled to set off
against any amount payable under the Contract to ACS any amount which is not
then due and payable by ACS or for which ACS disputes liability. |
| 10 |
suspension and cancellation |
| 10.1 |
Immediately upon the occurrence of any of the
events in Conditions 8.5 or 9.2 ACS may: (a) stop any Goods in transit and
suspend further deliveries under the relevant and any other Contracts and/or
(b) suspend work on any or all Contracts and/or (c) hold by way of a general
lien all materials or other property of the Buyer in the possession of ACS
and/or (d) terminate the relevant Contract and any other Contracts forthwith:
and if the Goods, or any part of them have been delivered but not paid for, the
price shall become immediately due and payable notwithstanding any previous
agreement or arrangement to the contrary.
|
| 10.2 |
In the event of ACS other than in any of the
circumstances referred to in Condition 10.1 being prevented or hindered from
completing the Contract either wholly or in part in accordance with the terms
thereof for any reason beyond its reasonable control then further performance
of the Contract shall be suspended for the period during which ACS is so
prevented provided that in the event of the Contract being suspended for a
continuous period of more than 3 months then either party may give the other
notice to terminate the Contract forthwith and in such circumstances the Buyer
shall pay for all Goods supplied to the date of such termination such payment
to be made on or before the last day of the month following the month during
which termination was effected. ACS shall be under no liability whatsoever to
the Buyer for any direct, indirect or consequential loss or damage suffered by
the Buyer as a result of ACS’s inability to perform its obligations under the
Contract in these circumstances. |
| 10.3 |
The termination of the Contract for whatever
reason will be without prejudice to the rights and duties of either party
accrued prior to termination. |
| 11 |
claims for damage in transit/defects |
| 11.1 |
The Buyer shall inspect the Goods within 7 days
of the Date of Delivery and whether or not the Buyer carries out such
obligation to inspect, subject to Condition 13, no claims for non-delivery,
shortages in quantity of units delivered, defective Goods, partial loss or
damage to Goods will be accepted by ACS unless: (a) they are notified in
writing by the Buyer to ACS within 7 days after the Date of Delivery (in the
case of partial loss, damage or defective Goods) or 14 days after the date of
the invoice (in the case of non-delivery) and (b) the Goods in respect of which
a claim is made together with the packaging are preserved intact as received
and at the Buyer’s risk for a period of 21 days from notification of any such
claim and (c) the Buyer permits ACS or its servants or agents full and free
right of access to inspect the Goods and investigate the claim. |
| 11.2 |
If the Buyer fails to give the appropriate
notice as specified in Condition 11.1 the Buyer’s claim will be deemed to have
been waived and will be absolutely barred. |
| 11.3 |
Section 3 Sale and Supply of Goods Act 1994
shall not apply. |
| 12 |
returns |
| 12.1 |
If the Buyer wishes to return any non-defective
Goods, a returns authorisation number (RAN) must be requested from ACS within 7
days of receipt of the Goods and prior to returning any item. Once ACS have
issued a RAN, Goods must be returned within a 5 day period. All returned Goods
must be unopened in the original manufacturer’s packaging complete with
accessories and manuals. Goods must be in pristine, resalable condition with no
markings on the packaging. If Goods are ordered in error or are no longer
required, the Goods are charged at the full invoice amount. However, ACS may at
its discretion and subject to manufacturer’s guidelines accept the Goods back
with a restocking fee of 25% of the order value (a minimum charge of £20.00
will apply) plus delivery costs.
|
| 13 |
warranty |
| 13.1 |
Where Goods are supplied by ACS but manufactured
by a third party, ACS shall: |
| 13.1.1 |
where the Buyer notifies ACS of a defect in
such Goods within the relevant manufacturer’s DOA Period (if any), assist the
Buyer with obtaining replacement Goods from such manufacturer; and |
| 13.1.2 |
use its best endeavours to pass on to the Buyer
any warranties or guarantees of such Goods which ACS has under contract with
that third party.
|
|
The Buyer is advised to view the
brief details of such warranty and/or guarantee appearing in the specification
section of the description of the Goods on ACS’s website at www.acs365.co.uk or
to contact the relevant manufucturer for more detail prior to placing its order
for such Goods. ACS shall have no liability in respect of defects in the Goods
which will result from the manufacture, design, materials or workmanship of
that third party and except as aforesaid any warranties, conditions or
undertakings (whether express or implied by statute, common law or otherwise)
howsoever in respect of such Goods are, subject to section 6(1) Unfair Contract
Terms Act 1977, hereby expressly excluded |
| 13.2 |
In substitution of all and any other rights
which the Buyer might or would have against ACS but for these Conditions and
subject to Conditions 11.1 and 13.1. ACS shall make good by replacement or, at
its option, repair any failure (fair wear and tear excepted) in the Goods
which, under conditions of proper use and maintenance, results from defects in
ACS’s manufacture, design, materials or workmanship and which appears not later
than 12 months after the Date of Delivery.
|
| 13.3 |
Notwithstanding the provisions of Condition
13.2, in the case of a claim falling within Condition 13.2, ACS reserves the
right at its sole discretion to credit the Buyer in full the price paid by the
Buyer to ACS in lieu of repair or replacement of the relevant Goods. |
| 13.4 |
ACS’s liability under this Condition shall
automatically cease if (a) the Buyer is in breach of this or any other contract
made with ACS: or (b) ACS or its servants or agents are denied full and free
right of access to the allegedly defective Goods: or (c) the Goods have been
treated improperly or in a way which has contributed to the defect (whether
before or after a defect is detected). |
| 13.5 |
The warranty set out in Condition 13.2 shall be
in lieu of any warranties conditions or undertakings whether express or implied
by statute common law or otherwise howsoever which warranties, conditions and
undertakings are hereby expressly excluded except that such exclusions will not
apply to any implied condition that ACS has or will have the right to sell the
Goods when the property is to pass. |
| 13.6 |
Nothing in these Conditions excludes or limits
the liability of ACS for death or personal injury caused by ACS’s negligence or
fraudulent misrepresentation |
| 13.7 |
Save as provided in Condition 13.6. ACS shall
not be liable to the Buyer for any indirect or consequential loss or damage,
for loss of profit, loss of business, depletion of goodwill) costs, expenses or
other claims for consequential compensation whatsoever (however caused) which
arise out of or in connection with the Contract. |
| 13.8 |
Save as provided in Condition 13.6 and subject
to Condition 13.7, in the event that notwithstanding the other provisions of
these Conditions, ACS is found liable for any loss or damage suffered by the
Buyer, ACS’s total liability in contract, tort (including negligence or breach
of statutory duty) misrepresentation or otherwise arising in connection with
the performance or contemplated performance of the Contract shall be limited to
the contract price.
|
| 13.9 |
Where the Goods are sold under a consumer sale
(as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer
are not affected by these conditions. |