Conditions Of Sale
Amber Industries Limited Conditions Of Sale
- 'Amber' means Amber Industries Ltd.
- 'Customer' means the person, firm or company whose order is accepted by Amber.
- 'Goods' means all those goods, services, materials and equipment specified in the quotation overleaf or any amendment thereto agreed in writing between Amber and the Customer and which are to be supplied to the Customer by Amber under these conditions of sale.
- 'Contract' means the contract for the purchase and sale of the Goods.
- 'SiteSite’ means the place where the installation (where applicable) of the Goods is to be carried out means the place where the installation (where applicable) of the Goods is to be carried out.
- The headings in the conditions are for convenience only and shall not affect their interpretation.
2. Basis For Sale
- All goods sold by Amber are sold subject to these conditions and these conditions shall be the sole terms and conditions of any sale by Amber to the Customer. Terms and conditions on the Customer’s order form or other document or otherwise shall not be binding on Amber.
- Amendments, variations or additions to the Contract are binding only if confirmed in writing by a person duly authorised by Amber.
- Amber’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Amber in writing by a person authorised. In entering into the contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed.
3. Orders & Specifications
- Upon receipt of the Customer’s order, Amber will confirm price, quantities and delivery date. These will usually be fixed, and if it is not so, specific mention of alternative arrangements will be incorporated into Contract.
- Any order submitted by the Customer will be deemed to be accepted by Amber when it is confirmed in writing by Amber’s authorised representatives subject to these terms and conditions.
- Once an order has been accepted by Amber the Buyer may only cancel with the agreement in writing of Amber and on terms that the Contract shall indemnify Amber in full against all loss (including loss of profit) cost (including the cost of all labour and materials used), damages, charges and expenses incurred by Amber as a result of cancellation.
- Orders are accepted by Amber subject to availability of the Goods for delivery.
- All drawings, photographs, illustrations, performance data, dimensions, weights and other technical information and particulars of the Goods are given by Amber in the belief that they are as accurate as reasonably possible but are not to be treated as binding or forming part of the Contract. Amber reserves the right to alter the design and specifications of the Goods at any time without notice.
- The Customer will be requested by Amber, to take any reasonable steps to satisfy Amber prior to execution of the order as to the Customer’s credit worthiness, such as the provision of trade and banker’s references or of the guarantee of payment from a third party acceptable to Amber. Amber reserves the the right to refuse the order, to delay the execution of the order, to request payment in part or in full prior to execution of order, or to cancel any Contract entered into with the Customer if Amber’s normal enquiries indicate that the Customer’s credit may not be sufficient to meet the needs of a Contract.
- The prices contained in the quotation shall be correspondingly increased (subject to any statutory exception) where, between the date of the quotation and the completion of the order there are increases in the scheduled rates, materials prices, or other charges of Amber or where the Customer requests work to be performed by Amber outside its normal working hours.
- Unless otherwise stated in writing, prices quoted by Amber do not include delivery.
- Unless otherwise agreed in writing, Amber shall package the Goods as Amber in its discretion considers appropriate in the light of the nature of the Goods and the method of transportation. All returnable packing cases, pallets and other containers and packing for the Goods provided to the Customer will be charged to the Customer additionally at Amber’s current prices, but such charge will be refunded by Amber to the Customer if the packing materials are returned to Amber’s designated warehouse carriage paid and in good condition within 30 days of their despatch to the Customer. Any special packaging will be at the Customer’s expense and may delay delivery.
- The price is exclusive of Value Added Tax and all other taxes, duties and expenses in respect of the Goods, all of which shall be payable by the Customer unless otherwise stipulated in writing by Amber.
- Unless otherwise agreed in writing, payment by the Customer shall be made within thirty (30) days of the date of the invoice. All payments must be made to Amber Industries Ltd.
- The time of payment shall be of the essence of the Contract.
- If payment is not made when due, Amber may, without prejudice to its other rights, charge interest at an annual rate of 3% above the current base rate of Midland Bank to be calculated on a day to day basis on the balance outstanding until payment is made in full.
- The Customer shall not be entitled to and shall not purport to set off, withhold or deduct any payments claimed by or due to the Customer under this Contract or under any other contract between the Customer and Amber.
- Without prejudice to any other remedy, if the Customer fails to make any payment by the due date, Amber may after giving appropriate notice to the Customer of its intention to do so, suspend any work related to any contract with the Customer until any such delayed payment has been received by Amber and Amber shall be entitled to claim any costs reasonably incurred as a result of such a suspension of work and, in addition, be entitled to a reasonable extension of time to any programme or programmes agreed for completion of such work.
- Unless agreed by Amber in writing, delivery of the Goods shall be effected at the Customer’s premises or (if earlier) at the premises of the Customer’s specified agent, by Amber delivering the Goods at that place.
- Any dates stated for despatch or delivery of the Goods are approximate only and Amber accepts no liability for loss or damage, whether direct, indirect or consequential, resulting from such delay or failure to deliver the Goods for any reason whatsoever.
- Any delay in delivering the Goods shall not give rise to a right by the Customer to treat the Contract as repudiated or to reject the Goods.
- If the customer refuses or fails to take delivery of the Goods at the time stated for delivery Amber shall be entitled, at its discretion, to store the Goods at the risk of the Customer. The Customer shall in addition pay all costs and expenses of such storage and any additional costs of carriage incurred.
- Amber reserves the right to deliver by instalments at its discretion. These conditions shall apply to each such delivery.
- Where Amber delivers the Goods at the Customer’s premises:
- The Customer shall inspect the Goods on delivery and shall notify Amber in writing within three (3) days of any shortages or any damage in transit.
- The Customer shall also on delivery mark on the carrier’s receipt note the details of any visible damage in transit.
- Amber will not consider any claims made by the Customer in respect of shortage or damage in transit unless these conditions are observed.
- The Customer shall provide, at the Customer’s own expense all necessary labour and equipment to offload the Goods on their arrival at the delivery address.
7. Damaged Goods
- If Amber is satisfied that any damage to the Goods occurred prior to delivery, Amber shall at its option:
- Repair or replace any Goods or part of Goods so damaged.
- Allow to the Customer credit in respect thereof of such amount as may be agreed with the Customer, or in default settled by Amber at its discretion.
- Amber’s liability in respect of damage to the Goods shall be limited to repairing, replacing or allowing credit as in 7.1.ii above.
8. Short Delivery
- If Amber is satisfied that the Goods have been short delivered, Amber shall at its option:
- Make up any short delivery by despatching to the Customer such Goods as Amber is satisfied were not delivered or
- Allow the Customer credit in respect thereof.
- Amber’s liability in respect of short delivery shall be limited to making up the delivery or allowing credit as in clause 8.1.ii above.
9. Risk & Title
- Except where the order includes installation the risk of loss and damage to the Goods shall pass to the Customer immediately upon delivery.
- Until Amber has been paid in full for all Goods supplied to the Customer under this Contract or any other contract between them and for all other sums due:
- Notwithstanding delivery and the passing of risk, Amber shall retain legal and beneficial title to the Goods supplied which the Customer shall hold as bailee and fiduciary for Amber.
- The Customer shall safely store the Goods while in the Customer’s possession until payment has been made to Amber in such a way as they are clearly identifiable as Amber’s property.
- The Customer shall keep the Goods separate from those of the Customer and third parties and shall keep the Goods properly stored, protected and insured and any Goods in the Customer’s possession shall be deemed to belong to Amber unless the Customer can prove that they have been paid for.
- Amber shall be entitled to trace the proceeds of sale of any Goods owned by Amber and any insurance proceeds received in respect of Goods owned by Amber. Such proceeds shall on Amber’s request be paid into a separate bank account and shall be held by the Customer on trust for Amber.
- Amber shall have the right, without prejudice to any other remedies at any time whether or not any sums owed to it are overdue, to enter, without prior notice, any premises, and to repossess and dispose of any Goods owned by it.
- If the Customer enters into, or does anything to enter into, an agreement with its creditors, liquidation, receivership, administrative receivership or administration, it must give immediate written notice to Amber and surrender possession of the Goods to Amber.
- Nothing in this clause shall prevent Amber for suing for the price when due.
- The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Amber, but if the Customer does so all monies owing by the Customer to Amber shall without prejudice to any other right or remedy of Amber forthwith become due and payable.
- Nothing in these clauses shall prevent Amber from being able to pass title to the Goods to the Customer by giving notice in writing.
10. Installation Of Goods
- The following conditions shall apply in addition to the preceding conditions where the order provides for installation of the Goods (‘the Works’).
- It shall be the sole responsibility of the Customer to ensure that the floor, doors and foundations upon which installation of the Goods is to be carried out are suitably surfaced (and comply with the tolerances required by Amber) and are of adequate strength to support the Works and maximum loads to be imposed on the Works.
- The Customer shall at his own cost and prior to the date of commencement of the Works prepare the floors and surfaces on which the Works are to be installed in accordance with Amber’s requirements. In the event that the Customer fails to comply with his obligations under this clause, on discovery of such an event, Amber may at its discretion refuse to commene or continue with the Works until such time as his failure has been rectified and the terms of clauses 10.11 and 10.12 hereof will expressly apply. Without prejudice to any other remedy that Amber may have herein or otherwise, any additional costs or expenses which Amber may reasonably incur due to such floors or surfaces not being in accordance with its requirements shall be invoiced by Amber to the Customer and paid by the Customer in accordance with terms of clause 5 hereof. Notwithstanding anything contained herein or otherwise to the contrary Amber shall have no responsibility for the proper working of the Works if the floors and surfaces on which the Works are installed are not in accordance with the requirements given to the Customer by Amber.
- Amber will not undertake or be responsible for any builders’ work or other work which involves alteration to the structure (including the floors) or the foundations of any building on the Site unless included in the specification or otherwise agreed in writing between Amber and the Customer.
- The Customer will at his own expense provide the following services and attendances to Amber to facilitate the Works:
- secure waterproof storage accommodation for the Goods and for Amber’s construction plant and equipment immediately adjacent to that part of the Site where the Works will take place.
- prior to commencing of the Works, clearance of the Site of all obstructions and other trades or operations to ensure that the Works can be carried out in one continuous uninterrupted operation during Amber’s normal working hours.
- lighting of sufficient intensity to enable the Works to be carried out safely and power supplies suitable for operation of construction plant and hand power tools.
- where the Goods require a source of power for their operation, provision of power supplies in the manner and at such locations on the site as Amber shall specify.
- in addition to offloading of the Goods, conveyance of the Goods to that part of the Site where the Works will take place.
- The Customer will ensure that prior to commencement of the Works the Site is secure and watertight.
- The Customer will ensure that during the course of the Works and until such time as the Works are handed over to the Customer the Goods are protected from loss or damage and from dust and dirt arising from the activities of the Customer or any third party on the Site.
- If for any reason not attributable to Amber the carrying out of the Works is suspended, delayed or hindered Amber has every to claim interim payment or payments on account and render interim invoice or invoices to the Customer for payment accordingly, irrespective of any schedule of payments previously agreed between the Customer and Amber.
- Any surplus Goods delivered to the Site shall remain the property of Amber. The Customer shall take all reasonable precautions for the safe custody and protection of such surplus goods until the time of their removal by Amber.
- The Customer at his own expense shall be responsible (other than for statutory obligations placed solely on Amber) for obtaining all consent, permissions, casements and licences for the carrying out of the Works in accordance with the terms hereof and for conforming with all statutes and orders regulations and by-laws made thereunder applicable at any time to the Works and shall indemnify and keep indemnified Amber against all actions, proceedings, costs, charges, claims or demands arising out of or in connection with any breach of this clause. Amber shall (so far as it is reasonably able) provide such information with respect to the Works as the Customer may request in respect of any application for such consent, permissions, casements or licences as aforesaid.
- Where the Contract provides for installation of the Goods the risk of loss and damage to Goods shall pass to the Customer immediately at the time of notification to the Customer of the physical completion of the work.
- Where installation work is involved Amber shall endeavour to complete such work within the time scales agreed with the Customer, or in the absence of such agreement as soon as reasonably possible. Amber shall not be liable for any costs, losses, expenses or damages caused by any delay in despatch of the Goods or in completion of the installation work connected therewith. In the event of any such delay Amber shall be entitled to such additional time as may be necessary to complete the Contract and where appropriate to allocate its products and services amongst its customers in such manner as it considers fair and reasonable. Under no circumstances shall the Customer be entitled to cancel the Order in the event of any such delay unless with the specific consent of Amber on mutually acceptable terms.
- If the Customer requests a suspension of any installation work or if Amber is delayed by the acts or omissions of the Customer, the Customer’s servants or agents or any third party not under Amber’s direct control then Amber shall be entitled to invoice the Customer with any costs or expenses reasonably incurred by Amber arising from the suspension or delay and such costs or expenses shall be paid by the Customer. Amber shall also be entitled to such additional time as may be necessary to complete the Contract.
11. Warrants & Liabilities
- Amber warrants that, insofar as they have been manufactured by Amber, the Goods will correspond with their specification at the time of delivery and will be free from defects in materials and workmanship for a period of twelve (12) months from the date of delivery. Amber will at its option refund the purchase price of, or repair or replace free of charge, such part of the Goods which its examination confirms are defective provided:
- The defect was notified to Amber within three (3) 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 in any event within six (6) months of delivery.
- The defects are not caused by fair wear and tear, neglect, misuse or improper adjustment.
- The Customer has used the Goods strictly in accordance with any instructions or recommendations of Amber or any tolerances, capacity limits or other specifications of the Goods laid down by Amber whether orally or in writing.
- Any defect in the Goods does not arise from any drawing, design or specification supplied by the Customer.
- The total price for the Goods has been paid by the due date for payment, and:
- The Customer has allowed Amber reasonable opportunity to inspect the Goods and such inspection confirms that the Goods are defective.
- In no circumstances shall Amber’s liability to the Customer for any breach of this clause exceed the price paid for the Goods with respect to which the claim is made.
- In no circumstances shall the Customer be entitled to reject the Goods, delay acceptance or refuse payment of the price.
- Except as expressly provided for in these conditions, all warranties and conditions express, implied, statutory or otherwise as to quality or fitness of any of the Goods for any particular purposes or of any other kind except as to title are hereby excluded.
- Except in respect of death or personal injury caused by Amber’s negligence, or by the Goods being defective and in respect of loss or damage to private property caused by the Goods being defective. Amber shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any direct, indirect or consequential loss or damage (whether for loss of profits or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of Amber, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, except as expressly provided in these conditions.
- Without prejudice to any other provisions hereof Amber shall not be liable to the Customer or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of Amber’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Amber’s reasonable control, including without limitation any strikes, lock-outs or other industrial action or trade disputes (whether involving employees of Amber or of a third party).
- The Customer shall indemnify Amber from and against all costs, claims, damages, expenses and losses (including loss of profits) whether direct, indirect, special, consequential or otherwise arising out of or in any way connected with the use by Amber of the Customer’s specifications or any failure of the Customer to comply with its obligations under the Contract in all respects or any improper use of the Goods by the Customer.
- All technical data, specifications, drawings, reports documents and information whatsoever which Amber submits to the Customer in connection with the Contract (and the copyright thereon) shall remain Amber’s property and must not be copied or shown to any third party without Amber’s express consent being obtained in advance and in any event upon the condition of a similar condition being imposed on any third party and must be returned to Amber on demand together with any copies made thereof. The Customer undertakes to use any technical data, specifications, drawings, reports, documents or information whatsoever which Amber submits to the Customer in connection with the Contract only for the erection and maintenance of the Goods forming the subject matter of the Contract.
14. Patent Rights
- So far as Amber is aware, the Goods do not infringe any existing UK Patents or designs or any other industrial or intellectual property rights but no warranty express or implied is given in respect of such infringement. However, in the event of any claim being made or action being brought against the Customer in respect of any infringement of patents or designs or other industrial or intellectual property rights by the use or sale of the Goods the Customer shall notify Amber immediately and Amber may at its own expense conduct through its own lawyers and experts all negotiations in settlement of the same or any litigation that may arise therefrom.
- Amber shall, without prejudice to any other right or remedy available to Amber , and by giving notice in writing to the Customer, be entitled to suspend or cancel any uncompleted part of the Contract or stop any Goods in transit or require any payment in advance or satisfactory security for further deliveries under the Contract in the event that:
- The Customer defaults in any payment or is otherwise in breach of its obligations to Amber under the Contract or any other contract with Amber, or:
- The Customer makes a voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or commits an act of bankruptcy or (being a company) goes into liquidation, or:
- An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer, or:
- The Customer ceases, or threatens to cease, to carry on business, or:
- Amber has reasonable cause to believe that any of these events is likely to occur and notifies the Customer accordingly
- The Customer shall not assign or transfer or purport to assign or transfer the Contract or the benefit of it to any other person without the written consent of Amber.
17. Nameplates & Transfers
- It is a condition of sale that no nameplate or transfer affixed by Amber to the Goods shall be removed or covered up without the consent in writing of Amber.
- Amber shall be entitled to arrange for its obligations under these conditions to be performed by a Sub-contractor. Amber will remain fully responsible for the performance of its obligations.
- The failure of Amber to insist upon strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such terms or conditions and shall in no way affect Amber’s right to enforce such provision later.
- 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.
21. Governing Law
- The construction, validity and performance of the Contract shall be governed by English Law and the parties shall accept the jurisdiction of the English courts.