TERMS & CONDITIONS
1.1 In these Terms:
“ARE” means Ahead Renewable Energy Ltd (registered in England and Wales under company number (0709654) r/o Merlin House, Brunel Road, Theale, Berkshire RG7 4AB “BUYER” means the person who accepts ARE’s Written quotation for the sale of the Goods or whose Written order for the Goods is accepted by ARE;
“CONTRACT” means the contract for the sale and purchase of the Goods;
“GOODS” means the goods (including any instalment of the goods or any parts for them) which ARE is to supply in accordance with these Terms;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“TERMS” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes (a) the Warranty Terms as notified by ARE to the Buyer and (b) any special terms agreed in Writing between the Buyer and ARE;
“WRITING”, and any similar expression, includes facsimile transmission and electronic mail.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, reenacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 ARE shall sell and the Buyer shall purchase the Goods in accordance with the Buyer’s Written order once accepted by ARE), subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such order is made or purported to be made, by the Buyer. Any quotation issued by ARE is for information purposes only and is not capable of acceptance by the Buyer.
2.2 No variation to these Terms shall be binding unless agreed in Writing between the authorised representative of the Buyer and a director of ARE.
2.3 ARE’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by ARE in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by ARE or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by ARE is followed or acted upon entirely at the Buyer’s own risk, and accordingly ARE shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by ARE shall be subject to correction without any liability
on the part of ARE.
3 Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by ARE unless and until confirmed in Writing by ARE’s authorised representative.
3.2 The Buyer shall be responsible to ARE for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving ARE any necessary information relating to the Goods within a sufficient time to enable ARE to perform the Contract in accordance with its terms. Anyquotation submitted by ARE is not capable of acceptance by the Buyer.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Buyer’s order if accepted by ARE.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by ARE in accordance with a specification submitted by the Buyer, the Buyer shall indemnify ARE against all loss, damages, costs and expenses awarded against or incurred by ARE in connection with, or paid or agreed to be paid by ARE in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from ARE’s use of the Buyer’s specification.
3.5 ARE reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to ARE’s specification,
which do not materially affect their quality or performance.
3.6 No order which has been accepted by ARE may be cancelled by the Buyer except with the agreement in Writing of ARE and on terms that the Buyer shall indemnify ARE in full against all loss (including loss of profit), costs
(including the cost of all labour and materials used), damages, charges and expenses incurred by ARE as a result of cancellation.
4 Price of the Goods
4.1 The price of the Goods shall be the price listed in ARE’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, ARE’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by ARE without giving notice to the Buyer.
4.2 ARE reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to ARE which is due to any factor beyond the control of ARE (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give ARE adequate information or instructions.
4.3 All prices are given by ARE on a DDP basis, and are inclusive of ARE’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to ARE.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to ARE before the due payment date.
5 Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and ARE, ARE may invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event ARE shall be entitled to invoice the Buyer for the price at any time after ARE has notified the Buyer that the Goods are ready for collection or (as the case may be) ARE has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of ARE’s invoice, and ARE shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to ARE, ARE may:
5.3.1 cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and ARE) as ARE may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum above HCBS Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) together with an
administration fee for the collection.
6.1 Unless otherwise agreed in writing delivery of the Goods shall be made by ARE delivering the Goods to the address set out in the Buyer’s order.
6.2 Any dates quoted for delivery of the Goods are approximate only and ARE shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by ARE in Writing. The Goods may be delivered by ARE in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by ARE to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If ARE fails to deliver the Goods (or any instalment) for any reason other than any cause beyond ARE’s reasonable control or the Buyer’s fault, and ARE is accordingly liable to the Buyer, ARE’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give ARE adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of ARE’s fault) then, without limiting any other right or remedy available to ARE, ARE may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at ARE’s premises, at the time when ARE notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at ARE’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when ARE has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until ARE has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by ARE to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as ARE’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as ARE’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), ARE may at any time require the Buyer to deliver up the Goods to ARE and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. The Buyer hereby grants to ARE a licence to enter any such premises for such purpose.
7.5 The Buyer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of ARE, but if the Buyer does so all moneys owing by the Buyer to ARE shall (without limiting any other right or remedy of ARE) forthwith become due and payable.
8 Warranties and liability
8.1 The terms of the standard ARE Warranty Terms will apply to the Goods, but subject thereto clauses 8.2 to 8.7 (inclusive) below shall apply.
8.2 Any warranty is given by ARE subject to the following conditions:
8.2.1 ARE shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 ARE shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, lightening or water damage, failure to follow ARE’s instructions (whether oral or in Writing) including as to the handling, installation, service or storage of the Goods, or any misuse or alteration or repair of the Goods without ARE’s approval;
8.2.3 ARE shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by ARE, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to ARE
8.2.5 the above warranty does not extend to any damage to the Goods caused by power surges.
8.3 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms.
8.5 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification (whether or not delivery is refused by the Buyer) must be notified to ARE within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure; and at the same time as the notification is made the Buyer must supply a written description of the issue, a colour photograph of any alleged damage, the
serial no. of the affected Goods and the date of delivery of the affected Goods.
8.5.1 If delivery is not refused, and the Buyer does not comply with clause 8.5, the Buyer shall not be entitled to reject the Goods and ARE shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to ARE in accordance with these Terms, ARE may replace the Goods (or the part in question) free of charge or, at ARE’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case ARE shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by ARE’s negligence, or liability for defective products under the Consumer Protection Act 1987, ARE shall not be liable to the Buyer by reason of any representation (unless
fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of ARE, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of ARE under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
8.8 ARE shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of ARE’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond ARE’s reasonable control. Without limiting the foregoing, damage to the Goods caused by any third party shall be regarded as causes beyond ARE’s reasonable control as shall the following:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lockouts or other industrial actions or trade disputes (whether involving employees of ARE or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
9.1 If a claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of a drawing, design or specification supplied by the Buyer, ARE shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 ARE is given full control of any proceedings or negotiations in connection with the claim;
9.1.2 the Buyer shall give ARE all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept the claim, or compromise any such proceedings without the consent of ARE (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 ARE shall be entitled to the benefit of, and the Buyer shall accordingly account to ARE for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect
of any such claim; and
9.1.6 without limiting any duty of the Buyer at common law, ARE may require the Buyer to take such steps as ARE may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which ARE is liable to indemnify the Buyer under this clause.
10 Insolvency of buyer
10.1 This clause 10 applies if:
10.1.1 the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect
of the Buyer (within the meaning of the Insolvency Act 1986); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 ARE reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without limiting any other right or remedy available to ARE, ARE may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 Export terms
11.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in Writing between the Buyer and ARE) apply notwithstanding any other provision of these Terms.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.4 Unless otherwise agreed in Writing between the Buyer and ARE, the Goods shall be delivered fob the air or sea port of shipment and ARE shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at ARE’s premises before shipment. ARE shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
12.1 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by ARE of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
12.4 No waiver of any rights arising under the Contract shall be effective unless in writing and signed by a duly authorised signatory of the party against whom the waiver is to be enforced. No failure or delay by either party in exercising any right, power or remedy under the Contract (except as expressly provided herein) shall operate as a waiver of any such right, power or remedy.
12.5 The Contract contains the whole agreement between the parties in respect of its subject matter and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to
such subject matter.
12.6 The Buyer may not assign the benefit of the Contract or transfer, delegate or sub-contract any of its duties or obligations hereunder except as authorised hereby or with the prior written consent of ARE.
12.7 The parties hereby agree that the Contracts (Rights of Third parties) Act 1999 shall not apply.
12.8 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.