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In these Conditions, the following words shall have the following meanings:
1.1 "Seller" means Ash Distribution Ltd. (CRN: 3310383) whose registered office is at Crowther Road, Washington, Tyne & Wear, NE38 0BW.
1.2 "Buyer" means the person, firm or company placing an order with the Seller.
1.3 "Goods" mean those goods which are the subject of the Buyer's order and which are to be supplied to the Buyer by the Seller under these Conditions.
1.4 "Contract" means the contract for the supply of Goods formed by the Seller's acceptance of the Buyer's order.
1.5 "VAT" means value-added tax.
1.6 "Website" means the Seller's website at www.ashdistribution.co.uk or such other URL as the Seller may from time to time determine and from which Goods may be ordered.
1.7 "PBR" means payment by return where credit account is not applicable.
2.1 All Goods sold by the Seller are sold subject to these Conditions which shall govern the Contract to the exclusion of any other terms and shall be the sole terms and conditions of any sale by the Seller to the Buyer. No employee or agent of the Seller has the Seller's authority to vary, amend or waive any of these Conditions on behalf of the Seller and no amendment or addition to any of them shall be deemed to have been accepted unless accepted in writing by the Seller.
2.2 The Seller's employees or agents are not authorised to make any representation with regard to the subject matter of the Contract. In entering into the Contract the Buyer acknowledges that if it relies on any representation, advice or recommendation given by the Seller, its employees or agents to the Buyer as to the use of the Goods it does so entirely at the Buyer's own risk.
2.3 All orders are accepted on the basis that they are from a bona fide trading entity or professional end-user. The Buyer undertakes to the Seller that it is a bona fide trading entity or professional end-user. The Buyer acknowledges that the laws governing the Contract shall be those relating to business to business (rather than business to consumer) transactions unless judged otherwise by a court of competent jurisdiction.
3.1 Acceptance by the Seller of the Buyer's order is in all cases subject to the availability of Goods for delivery, the correct price payable for the Goods being stated on the Buyer's order and also to the meeting of certain other criteria, dependent upon the proposed payment method:
3.2 In the event that the Buyer submits an order for Goods via the Website, the Seller will confirm receipt of the Buyer's order by sending an order acknowledgment e-mail to the Buyer as soon as possible after submission of the order. Receipt of this order acknowledgment e-mail signifies that the Seller has received the Buyer's order but does not signify that the Seller has accepted the Buyer's order. Acceptance of the Buyer's order will be deemed when the Seller sends an order acceptance e-mail to the Buyer and the Buyer should not assume that the order has been accepted until such order acceptance e-mail has been received by the Buyer. There is no Contract in respect of the Goods until the Seller has sent an order acceptance e-mail which accepts the Buyer's order.
3.3 All Contracts accepted by the Seller following the submission of an order via the Website shall be in the English language, unless agreed otherwise between the parties.
3.4 Acceptance by the Seller of each of the Buyer's orders brings into existence a separate legally binding contract between the Seller and the Buyer.
3.5 In the absence of any documentary evidence, acceptance is deemed to have been given by the Seller on delivery of the Goods to the Buyer's address shown in the order.
3.6 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order and specification submitted by the Buyer and for checking and ensuring the accuracy of any order acknowledgement issued by the Seller. In submitting an order to the Seller, the Buyer agrees to the Seller's checking of the information contained in the Buyer's order as well as for credit checking with a reputable credit reference agency when applicable.
3.7 All specifications of the Goods are given by the Seller in the belief that they are as accurate as reasonably possible but are not to be treated as binding or as forming part of or incorporated by reference into the Contract.
3.8 Orders sent in confirmation of telephoned instructions should be clearly marked 'CONFIRMATION' otherwise the Seller will accept no responsibility for duplication of despatch.
4.1 The price payable for the Goods shall be as stated in the Seller's price list current at the date of acceptance of the order, as set out on the Website (in the case of orders submitted via the Website only) or as set out in a quotation issued by the Seller to the Buyer relating to the Goods. All prices quoted are valid at the time of issue only, due to the price volatility of Goods offered and may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice in writing to the Buyer at any time before delivery to increase the price for the Goods to reflect any increase in cost to the Seller which is beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuations, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specification which is requested by the Buyer, or which is due to any failure by the Buyer to give the Seller adequate information or instructions.
4.3 The price of the Goods is exclusive of the cost of delivery, packaging, insurance, VAT, customs duties and all other taxes, duties and expenses in respect of the Goods, all of which shall be added to the price for the Buyer's account, unless otherwise stipulated in writing by the Seller.
4.4 The Seller shall be entitled to invoice the Buyer for the price of the Goods at the time of despatch or at any time following delivery of the Goods unless the Buyer wrongfully fails to take delivery of the Goods in which event the Seller shall be entitled to invoice the Buyer for the full amount at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
4.5 If delivery is made in instalments, each instalment may be separately invoiced, and if so, each such invoice shall be paid for when due, without regard to other instalments.
4.6 Information including prices payable for Goods on the Website is an "invitation to treat" and not a contractual offer from the Seller which the Buyer may accept. The Seller reserves the right to correct any errors in that information without any liability to the Buyer. In no circumstances will the Seller be contractually bound to supply the Buyer with Goods on the basis of any incorrect information, even if that information is repeated in the Buyer's order.
5.1 Unless otherwise agreed in writing, the Goods will be delivered to the Buyer at the address for delivery specified in the Buyer's order or otherwise agreed with the Seller (or in the absence of a specified address or agreement, to the invoice address of the Buyer).
5.2 Any delivery dates given to the Buyer by the Seller are given for guidance purposes only. Although the Seller will use all reasonable efforts to meet delivery dates, it shall not be liable to the Buyer for any loss or damage, whether direct, indirect or consequential for any delay in delivery, in whole or in part, howsoever caused.
5.3 If the Buyer refuses or fails to take delivery of the Goods on the date of delivery, the Seller will be entitled at its discretion to store the Goods at the risk of the Buyer and the Buyer shall in addition to the price payable under clause 4 pay all costs and expenses of such storage and any additional costs of carriage incurred.
5.4 All Goods must be inspected by the Buyer immediately on delivery. If any Goods are damaged or lost or if there has been short delivery, the Buyer must endorse the consignment note supplied by the carrier accordingly and submit a detailed written claim to the Seller within 2 (two) working days of delivery of the Goods. Where Goods are sold on an ex works basis, the Seller accepts no liability for Goods lost or damaged in transit. The Buyer's signature on the consignment note without any such endorsement shall release the Seller from any liability in respect of damage or loss in transit or short delivery. In the event of a valid claim in respect of the Goods (which is based on any damage to, loss in or short delivery of the Goods), the provisions of clause 11.4 shall apply.
5.5 Except as otherwise provided in these Conditions, the risk of loss or damage to the Goods shall pass to the Buyer upon delivery of the Goods.
6.1 Unless otherwise agreed in writing, the Buyer shall make payment for the Goods in the currency of the invoice and as per the account terms agreed in writing with the Buyer by the Seller. The Seller shall be entitled to recover the price notwithstanding that property in the Goods has not passed to the Buyer.
6.2 The time of payment of the price shall be of the essence of the Contract.
6.3 All payments shall be made by the Buyer in Pounds Sterling, unless otherwise agreed by the Seller in writing whereby the Buyer shall indemnify the Seller against the full cost incurred by the Seller (including all costs, charges and expenses) of converting that payment into Pounds Sterling.
6.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
6.5 The Buyer shall not purport to set off or withhold any payments claimed or due to the Seller under the Contract or any other contract between the Seller and the Buyer.
7.1 Notwithstanding delivery and the passing of risk in Goods, the Seller shall retain title to and ownership of the Goods until it has received payment in full of all sums due for all Goods supplied to the Buyer. If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.
7.2 Even though title has not passed, the Seller shall be entitled to sue for the price of the Goods once payment has become due.
7.3 Until such time as property in the Goods passes to the Buyer:
7.4 If the Buyer compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order made against it or, being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of debt or becomes insolvent or if the Seller has reasonable cause to believe that any of these events is likely to occur, the Seller shall have the right, without prejudice to any other remedies:
8.1 Goods correctly supplied in accordance with the Buyer's order may not be returned without the Seller's written consent (including where there has been duplication of orders as referred to in clause 3.8).
8.2 If such written consent referred to in clause 8.1 is forthcoming a returned goods handling charge of 15% (fifteen per cent) of the price (or £10.00 if greater) will be made. In no circumstances will Goods which have, in the reasonable opinion of the Seller, been used be considered by the Seller for return unless there is (in the opinion of the Seller) a valid reason for such return.
9.1 The Buyer shall not be entitled to cancel the Contract and if the Buyer purports to do so it shall indemnify the Seller for all losses, costs and expenses incurred by the Seller in relation to the Contract.
9.2 The Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer if:
9.3 If the Seller cancels the Buyer's order, the Seller will notify the Buyer accordingly and will re-credit the Buyer with any amounts deducted by the Seller in respect of that order as soon as possible but in any event within 30 (thirty) days of cancellation. The Seller will not be under any obligation to pay the Buyer any additional compensation for inconvenience or disappointment.
10.1 In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as published in 2000. 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 Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
10.3 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.
10.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FOB to the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and becomes known after shipment, or in respect of any damage caused during transit.
10.6 Unless otherwise agreed by the Seller, payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in the United Kingdom acceptable to the Seller.
11.1 The Seller will make every effort to ensure that the Goods supplied will be of satisfactory quality and warrants that the Goods will be free from defects in materials and workmanship for a period of 12 (twelve) months (unless otherwise stated) from the date of delivery.
11.2 The Seller shall be under no liability:
11.3 Any claim by the Buyer based on any defect in the quality or condition of the Goods or their failure to correspond with the agreed specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 (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. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the contract price as if the Goods had been delivered in accordance with the Contract.
11.4 Where any valid claim in respect of any of the Goods (which is based on any defect in the quality or condition of the Goods or their failure to meet the agreed specification) is notified to the Seller in accordance with these Conditions, the Seller shall (subject to (i) the Seller giving its prior written consent to return of the Goods; and (ii) the Buyer returning the Goods at its own expense to such location as the Seller may notify in writing with details of the invoice covering the purchase and a description of the problem) be entitled to repair or replace the Goods (or the part(s) in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
11.5 In no circumstances shall the Seller's liability to the Buyer for any breach of warranty exceed:
11.6 Except as provided for in these Conditions, there are no warranties, express or implied, of satisfactory quality or of fitness for a particular purpose, or of any other kind except as to title. In particular, all conditions and warranties which would otherwise be implied by statute or under the common law are hereby excluded to the fullest extent permitted by law.
11.7 The Seller shall under no circumstances be liable for loss of profits, revenue or business opportunity, whether direct or indirect, or for any other indirect, special or consequential loss (including loss of anticipated profit or third party claims) howsoever arising either from breach or non-performance of any of its obligations under the Contract or from the supply of or intended use of the Goods, even if the Seller has been advised of the possibility of such potential loss, except that the Seller shall be liable for loss arising from death or personal injury resulting from the proven negligence of the Seller.
11.8 All recommendations and advice given by or on behalf of the Seller to the Buyer as to methods of storing, using or applying the Goods, the purposes for which the Goods may be applied and the suitability of using the Goods in any manufacturing process or in connection with any other materials are given for guidance only.
12.1 The Seller retains copyright in respect of all drawings, plans, specifications and catalogues issued by it to the Buyer and the Contract shall not be deemed to transfer to the Buyer any of the Seller's copyright, patents, designs, trade marks or other intellectual property rights.
12.2 "Ash" and "TRUEWAY" are the registered or unregistered trademarks of the Seller.
12.3 The "TRUEWAY" logo is the registered trademark of the Seller.
12.4 Whilst the Seller is not aware of any infringement by the Goods of any third party's intellectual property rights, the Seller makes no representation or warranty that use of the Goods does not infringe any such rights and the Seller accepts no liability in this respect.
13.1 The Seller's address and various contact details are available at www.ashdistribution.co.uk or the Buyer can e-mail the Seller at email@example.com. Information about special offers available only via the Website will be displayed on the Website. Information on the technical steps to follow to conclude an order via the Website is available at www.ashdistribution.co.uk. The Seller's VAT identity number is 660 1163 71
13.2 The Seller is a member of a group of companies and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group including a subsidiary or holding company of the Seller (as defined by s.736 of the Companies Act 1985, as amended by the Companies Act 1989).
13.3 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in or failure to perform any of its obligations under the Contract if the delay or failure was caused by circumstances outside the reasonable control of the Seller.
13.4 The failure of the Seller to insist upon the strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Seller's right to enforce such provision later.
13.5 If it becomes necessary for a court to enforce these Conditions and any one of these Conditions is found to be invalid or unenforceable this will not affect the remainder of these Conditions.
13.6 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract between the Seller and the Buyer but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13.7 The construction, validity and performance of the Contract shall be governed by English law and by entering into the Contract the parties submit to the jurisdiction of the English courts.