1.1 In these Conditions the following words have the following meanings:
the “Client”: the person(s), firm or company who purchases the Goods and/or Services from the Company;
the “Company”: AMCC Ltd trading as Apex.co.uk, Summit House, Athey Street, Macclesfield, SK11 6QU
the “Contract”: any contract between the Company and the Client for the sale and purchase of the Goods and/or Services, incorporating these Conditions;
the “Goods”: any goods agreed in the Contract to be supplied to the Client by the Company (including any part or parts of them);
the “Services”: any service agreed in the Contract to be supplied to the Client by the Company.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2. Application Of Terms
2.1 Subject to any variation under Condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Client's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company.
2.4 Each order for Goods and/or Services by the Client from the Company shall be deemed to be an offer by the Client to purchase Goods and/or Services subject to these Conditions.
2.5 No order placed by the Client shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods and/or Services to the Client.
2.6 The Client must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Client. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The description of the Goods and/or Services shall be as set out in the Company's quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues, website or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They will not form part of this Contract.
4.1 The Company shall deliver the Goods and/or Services at the place nominated in writing by the Client.
4.2 Any dates specified by the Company for delivery of the Goods and/or Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
5.1 The Goods are at the risk of the Client from the time of delivery.
5.2 Ownership of the Goods shall not pass to the Client until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1 the Goods; and
5.2.2 all other sums which are or which become due to the Company from the Client on any account.
5.3 Until ownership of the Goods has passed to the Client, the Client must:
5.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
5.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.4 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
5.5 The Client grants the Company, 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 inspect them, or, where the Client's right to possession has terminated, to recover them.
6.1 The price for the Goods and/or Services shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Client will pay in addition when it is due to pay for the Goods and/or Services.
7.1 Payment of the price for the Goods and/or Services is due as follows:
7.1.1 An agreed percentage deposit (normally 50%) upon receipt of the order followed by the remaining balance (normally 50%) on delivery of the Goods and/or Services, or
7.1.2 in certain circumstances the Company will require payment in full for the Goods and/or Services upon receipt of the order, or
7.1.3 if the Client has been granted a credit account by the Company payment shall be no later than 30 days from the date of the invoice. The Company may amend, alter or withdraw any credit facility at any time.
7.2 Time for payment shall be of the essence.
7.3 No payment shall be deemed to have been received until the Company has received cleared funds.
7.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
7.5 The Client shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.6 If the Client fails to pay the Company any sum due pursuant to the Contract the Client will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of Scotland, accruing on a daily basis until payment is made, whether before or after any judgement.
7.7 The Company shall also be entitled to claim all costs incurred by instructing solicitors and/ or debt collection agents to collect any outstanding amounts due by the Client to the Company for work undertaken by the Company’s solicitors and/or debt collection agency both before and after judgement.
8.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods will be of satisfactory quality
8.2 The Company warrants that any design created will not infringe the rights of third parties.
8.3 All designs created by the Company and the copyright in such designs and the right to reproduce the designs are the Company’s property.
9. Limitation Of Liability
9.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
9.1.1 any breach of these Conditions; and
9.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1878) are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent misrepresentation.
9.4 Subject to conditions 9.2 and 9.3:
9.4.1 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Contract; and
9.4.2 the Company shall not be liable to the Client for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10.1 The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
10.2 The Company may assign or sub-contract the Contract or any part of it to any person, firm or company.
11. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 30 days, the Client shall be entitled to give notice in writing to the Company to terminate the Contract.
12.1 This clause applies if:
12.1.1 the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
12.1.3 the Client ceases, or threatens to cease, to carry on business; or
12.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
12.2 If clause 12.1 applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract without any liability to the Client, and if any of the Goods and/or Services have been delivered or provided but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Client will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
13.7 The Company or its employees or agents shall not be required to work in any hazardous or dangerous situations and the Company shall have absolute discretion in deciding whether any situation is hazardous or dangerous.
14.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
14.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Client by the Company; or
14.1.2 (in the case of the communications to the Client) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Client set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Client.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
14.2.2 if delivered by hand, on the day of delivery;
14.3.3 if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.