Our Terms & Conditions
1. DEFINITIONS AND INTERPRETATIONS
In these conditions:-
means ASHFIELD SPRINGS LIMITED, and their respective agents;
means any agreement between the Company and the Purchaser for the sale or supply of the goods to the Purchaser or for the performance of the Services for the Purchaser by the Company;
means any person contracting to purchase any Goods from the Company;
means all products or goods supplied or to be supplied by the Company under the Contract;
means any work labour or services performed by the Company under the Contract.
Words importing the singular number shall include the plural and vice versa, words importing the masculine shall include the feminine and neuter and vice versa and words importing persons shall include bodies corporate, unincorporated associations and partnerships.
The headings used herein are for convenience only and shall not affect the interpretation or construction of these conditions.
All orders are accepted and all Contracts are made by the Company and the Purchaser subject to the terms and conditions herein contained. These terms and conditions shall be incorporated into the Contract to the exclusion of all other terms and conditions expressed or implied other than valid variations of these terms and conditions as provided by condition 2.3 herein even if such terms and conditions are contained in a document produced by the Purchaser in which there are provisions which seek to provide that his terms and conditions prevail to the exclusion of the terms and conditions herein.
These terms and conditions supersede all previous terms and conditions of trade of the Company.
No variation of these conditions shall bind the Company unless agreed in writing and signed by a director on behalf of the Company save that any special conditions expressed by the Company in any quotation, estimate, contract, specification, written acknowledgement or letter shall form part of these conditions and in the event of any conflict or ambiguity such special conditions shall prevail.
The Company may grant to the Purchaser time or other indulgence without affecting its rights against the Purchaser under these conditions.
Each order and its acceptance is to be treated as a separate contract and accordingly if there shall be at any one time more than one Contract in the course of performance between the Company and the same Purchaser and if any question dispute or difficulty shall arise in respect of one of such Contracts, neither the existence of such question, dispute, or difficulty nor the terms on which it may be settled shall affect in any way whatsoever other such Contracts save that if such question or dispute relates to non-payment of the Company for the Goods supplied to or for the Services performed for the Purchaser then the Company shall be entitled to cease to perform the other Contracts without liability.
A quotation given by the Company to the Purchaser does not constitute an offer by the Company to supply the goods or perform the Services.
Every order placed by the Purchaser with the Company shall be deemed to be an offer by the Purchaser to the Company to buy the Goods or pay for the performance of the Services subject to these terms and conditions and will not be binding upon the Company until the Company has accepted the order.
5. DELIVERY AND PERFORMANCE OF SERVICES
Time of delivery and performance
If no date for delivery or performance is stated by the Company delivery or performance shall be made within a reasonable time. Any time or date for delivery of the Goods or performance of the Services given by the Company to the Purchaser is an estimate only. The Company shall not be liable for any loss or damage howsoever arising by reason of any failure on the part of the Company to effect delivery to or performance for the Purchaser at the time or date stated and accordingly time for delivery or performance shall not be of the essence of the Contract unless the Company expressly agrees in writing. Any delivery period begins on the date of the Company's acceptance of the Purchaser's order as required by condition 4 hereof or if later when the Company receives from the Purchaser any further information or goods which it may require to proceed with the Contract. The Purchaser agrees to supply such information or goods promptly.
Passing of risk
Notwithstanding the terms of condition 10 below, risk of loss or damage to or by the Goods shall pass to the Purchaser upon the Goods leaving the premises of the Company unless delivery is made by a motor vehicle owned by the Company in which case such risk shall pass to the Purchaser upon the Goods entering the premises of the Purchaser.
Place of delivery
In the event that the Contract requires the Company to cause the Goods to be delivered the Company shall effect delivery of the Goods to the Purchasers normal place of business within the United Kingdom unless otherwise agreed between the parties.
The Purchaser shall in all cases provide the labour necessary to unload the Goods free of charge to the Company and shall ensure that the delivery vehicle is unloaded immediately and shall indemnity the Company against any loss or damage arising during unloading.
Checking goods on delivery
The Purchaser shall check the Goods delivered on delivery and shall then sign the delivery note. The delivery note shall be conclusive evidence of full and proper delivery of the Goods and no claim will be accepted by the Company for short delivery after the Purchaser has signed the delivery note.
Short or excess delivery
The Company shall be deemed to have fulfilled its obligations under the Contract by delivery of a quantity of Goods which are within a margin of 5%, more or less than the quantity specified in the Contract. The Purchaser shall pay for the actual quantity of Goods delivered at the rates specified in the Contract.
Delivery by instalments
The Company shall be entitled to deliver the Goods in instalments unless otherwise agreed in writing between the parties and the Purchaser shall be obliged to accept such deliveries. If the Goods are delivered in instalments by the Company each delivery shall be deemed to be the subject of a separate contract to which these conditions shall apply but so that this condition shall in no way affect the right of the Company to suspend or terminate the whole Contract.
Any complaint about or delay in the delivery of any instalment shall not entitle the Purchaser to reject any subsequent delivery.
If the Goods are being delivered in instalments by the Company then it shall have the right to make good any shortfalls in the amount of Goods delivered in earlier instalments in later instalments.
If the Goods are being delivered in instalments, the Company shall have the right to withhold later deliveries until earlier deliveries have been paid for in full by the Purchaser.
6. PURCHASER CAUSING DELAY IN DELIVERY OR COLLECTION OF GOODS
If for any reason the Purchaser causes any delay in the delivery or collection of the Goods or any part thereof beyond the lime that they would otherwise have been available for delivery or collection the Company may terminate the Contract by serving writ ten notice to that effect on the Purchaser. Such termination shall be without prejudice to any claim that the Company may have in respect of an antecedent breach by the Purchaser of any of his obligations under the said Contract or in respect of any Goods delivered to the Purchaser for which payment in full has not been received.
The Company shall have a general lien over any goods or monies belonging to the Purchaser in its possession until all monies due to the Company from the Purchaser shall have been paid in full.
If any monies due to the Company from the Purchaser are not paid within 14 days of such monies becoming due the Company may in its absolute discretion sell the goods belonging to the Purchaser in its possession as agent for the Purchaser and apply the proceeds of sale less any costs of sale towards the monies due from the Purchaser to the Company and shall upon accounting to the Purchaser for the balance of the proceeds of sale (if any) be discharged from all liability whatsoever in respect of the goods.
8. UNCOLLECTED GOODS SUPPLIED BY PURCHASER
If for any reason the Purchaser sup plies goods to the Company and then fails to collect the same after the Company has served written notice on the Purchaser stating that the said goods are ready for collection the Company may charge the Purchaser for all storage expenses incurred consequent thereon and risk of loss or damage to or by the goods shall pass to the Purchaser on the date on which the Company served the said notice. The Company may after a reasonable period (to be decided solely by the Company) otherwise dispose of the goods and account to the Purchaser for the proceeds of sale less storage expenses and any costs of sale and shall upon accounting to the Purchaser for the balance of the proceeds of sale (if any) be discharged from all liability whatsoever in respect of the goods.
9. PRICES AND TERMS OF PAYMENT
Time for payment shall be of the essence of the Contract.
Catalogues price lists and other advertising material are indications only of the type of Goods and Services offered and of the price of those Goods and Services and shall not be binding upon the Company.
The Purchaser will be invoiced on delivery or collection of the Goods or performance of the Services and the Purchaser shall be required to make payment in full within 30 days o( the date of the Company's invoice.
Where any payment by the Purchaser is overdue interest may at the Company's option be charged on all outstanding sums at the rate of [Four] per cent above the base rate of [Barclay's] Bank plc from time to time from the date such payment was due until the date payment is made.
The Company reserves the right by serving written notice on the Purchaser at any time before delivery or performance, to increase the price of the Goods or Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including without prejudice to the generality of the foregoing any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour, materials or other costs of manufacture), any change of delivery dales or performance periods, quantities or specifications for the Goods or Services which is requested by the Purchaser or any delay caused by any instructions of the Purchaser or failure by the Purchaser to give the Company adequate information or instruction.
10. LOSS OR DAMAGE IN TRANSIT
Save as provided by condition 10.2 below the Company shall in no circumstances be liable for any damages tram whatever cause which may arise while the goods are in transit.
Where a delivery is made by the Company's own transport or carrier instructed by the Company and Goods are lost or damaged in transit the Company will repair or at its option replace free of charge any such Goods.
Any claim by the Purchaser in respect of loss to the Purchaser arising from the Goods or the performance of the Services being defective must be made by the Purchaser in writing to the Company within three months of delivery of the Goods or performance of the Services.
Any claim by the Purchaser in respect of loss to the Purchaser arising from damage to the Goods in transit or for non-delivery of the Goods where delivery is made by the Company's own transport or carrier must be made in writing to the Company within five working days of delivery of the Goods in the case of damaged Goods and within five working days of the date of delivery of the invoice or despatch note in the case of non-delivery of the Goods.
In the event that the Purchaser fails to make a claim in writing to the Company within the time limits specified in conditions 11.1 and 11 2 above, the Company shall be discharged of all liability whatsoever to the Purchaser under the Contract and the Purchaser shall indemnify the Company against all losses or damages suffered or incurred by the Company arising from such failure.
Any Goods in respect of which a claim is made shall be returned to the Company at the expense of the Purchaser or if return is not practicable the Purchaser shall allow the Company to inspect the Goods in situ. In the event that the Purchaser's claim shall be upheld by the Company in full the Company undertakes to reimburse the Purchaser with the cost of returning the Goads to the Company but if the Purchaser's claim shall not be upheld by the Company then the Company reserves the right to charge the Purchaser for any costs or expenses it has incurred in investigating the Purchaser's claim.
The Purchaser shall give the Company reasonable opportunity of examining any Goods which are the subject of a claim in normal working hours before they have been further handled processed or otherwise dealt with.
12. RESERVATION OF TITLE
The Goods shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Purchaser shall have paid to the Company in full the price of the Goods.
The Goods shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Purchaser shall have paid to the Company in full the price of any other goods the subject of any other contract with the Company.
Until such time as the Purchaser becomes the owner of the Goods he will hold the Goods as a fiduciary bailee of the Company and store them on his premises separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Company.
The Company shall store the Goods under conditions that will prevent deterioration and also where necessary and at the request of the Company, store particular Goods under special conditions such as may be appropriate to their requirements.
Subject to conditions 12.10 and 12.11 below, the Purchaser shall be at liberty to sell the Goods in its normal course of business.
The Purchaser shall hold any proceeds of sale of the Goods as fiduciary for the Company.
All proceeds of sale received by the Purchaser in respect of the Goods shall be held in trust for the Company and shall be paid into a separate bank account on behalf of the Company and shall at all times be identifiable as the Company's monies.
If Goods the property of the Company are admixed with goods the property of the Purchaser or are processed with or incorporated therein the product thereof shall become and shall be deemed to be the sole and exclusive property of the Company.
If the Goods the property of the Company are admixed with goods the property of any person other than the Purchaser or are processed with or incorporated therein the product thereof shall become and shall be deemed to be owned in common with that other person.
The Company may at any time revoke the Purchaser's right referred to in condition 12.5 above if the Purchaser is in default in the payment of any sum whatsoever due to the Company (whether in respect of the Goods or any other goods supplied at any time by the Company to the Purchaser or for any other reason whatsoever) or if any bill of exchange cheque or any other negotiable instrument drawn or executed by the Purchaser in favour of the Company is dishonoured on presentation for payment or if the Company has doubts as to the solvency or acceptable credit worthiness of the Purchaser.
The Purchaser's right referred to in condition 12.5 above shall be deemed to be revoked forthwith upon the happening of any of the events referred to in Condition 20.
The Company and its agents may for the purpose of recovery of its Goods at any time enter upon the Purchaser's premises or such other premises where the Goods are stored or where they are reasonably thought to be stored and may repossess the same notwithstanding that the Goods may have to be disconnected or dismantled from goods the property of the Purchaser or any other person.
In the event that any of the above words phrases or sentences of this condition 12 shall be found to be void but would be valid if some part thereof were deleted then this condition shall apply with such modification as may be necessary to make it valid and effective.
13. LIMITATION OF LIABILITY
Notwithstanding any of the provisions contained herein, nothing in these conditions shall operate or be construed as operating to exclude or restrict any liability of the Company for death or personal injury resulting from the negligence of the Company or its servants or agents.
In the event of any claim on any ground being made by the Purchaser against the Company in respect of the Goods supplied or the Services performed or any matter arising under out of or in connection with the Contract or relating thereto the liability of the Company shall be limited(in respect of each claim or series of connected claims) to the actual cost of repair or replacement of any Goods shown to have been defective or to the actual cost of remedying the defective performance of the Services by the Company. The Company accepts no liability for economic or consequential loss howsoever arising including without prejudice to the generality of the foregoing loss of profit and loss of business.
The Purchaser hereby acknowledges that the Company shall not be liable for and the Purchaser shall not make any claim respect of any loss or damage not reported to the Company in accordance with the terms of condition 10 hereof.
The Company shall not be liable for any damage to or deterioration of the Goods due to the unsuitability of storage conditions used by the Purchaser.
14. SET OFF
The Purchaser shall not be entitled to withhold or set off any amount payable to the Company under the Contract because of any claim by the Purchaser in respect of any alleged breach of the Contract or in respect of any reason whatsoever.
The Company may at its option accept cancellation of an order on condition that payment is received in full to cover the total costs incurred in the production of the Goods at the time of cancellation, together with loss of profit in respect of the order.
16. FORCE MAJEURE
The Company shall not be held liable or deemed to be in breach of the Contract for any delay or failure to perform its obligations hereunder to the extent that the delay has been caused or fulfilment of its obligations to the Purchaser have been prevented hindered or delayed by force majeure as herein defined.
For the purpose of this condition force majeure shall mean any circumstances beyond the control of the Company and shall include without prejudice to the generality of the foregoing; (a) acts of God, perils of the sea or air, riots, civil commotion, war, rebellion, national or international emergency, strikes, lockouts, work to rule, overtime bans or other labour disputes; (b) destruction or damage due to natural causes, floods, fire, explosions, breakdown of machinery, sabotage or embargo, (c) any order of a local, national or international authority; (d) shortage of labour, equipment, materials or supplies.
if the Company is prevented from delivering part of the Goods or performing part of the Services by reason of any of the causes specified in the preceding condition, the Company may at its option deliver or perform and the Purchaser shall take and pay for such part of the Goods or Services as the Company shall be able to deliver or perform in accordance with the Contract.
If the delay or failure of the Company to perform its obligations hereunder continues for a period of 3 months then either party may give notice in writing to the other determining the Contract and on such determination the Company shall refund to the Purchaser any payment which the Purchaser has made on account of the price of the Goods or performance of the Services or any part thereof which have not been delivered to the Purchaser by reason of the Force Majeure event after deduction of any amount due to the Company.
The purchaser has the right to cancel within seven days of their order, or seven days of receipt of the goods (whichever is the longer). If the purchaser does cancel the order, the payment is returned after following our CLAIMS procedure. There are variations to these rules where we are supplying services or making customised goods.
17. INTELLECTUAL PROPERTY
The Purchaser will fully indemnify and keep indemnified the Company against any claim for infringement of Letters Patent, Registered Design, Trade Mark or Copyright by the use by the Company of any article or material supplied by the Purchaser to the Company and against all costs and damages which the Company may incur in any action for such infringement or for which the Company may become liable in any such action.
The Purchaser shall indemnify and keep indemnified the Company against all actions claims proceedings, costs damages, expenses and liabilities whatsoever or howsoever caused or arising which the Company may sustain, incur or pay in connection with the Goods supplied or Services performed under the Contract save to the extent admitted expressly in these conditions and save where such actions, claims, proceedings, costs, damages, expenses and liabilities shall have been sustained incurred or paid as a direct result of the negligence of the Company or its servants or agents and can be attributed to no other cause (whether in whole or in part).
19. ACTION FOR PRICE
The Company shall be entitled to sue for the price of the Goods notwithstanding that title to the Goods has not passed to the Purchaser.
20. DETERMINATION OF CONTRACT
The Company shall have the right forthwith to determine any Contract subsisting with the Purchaser and upon serving written notice to such effect on the Purchaser any subsisting Contract shall be deemed to be determined but this shall be without prejudice to any claim that the Company may have in respect of any antecedent breach by the Purchaser of any of his obligations under the said Contract or in respect of any Goods delivered to or Services performed for the Purchaser for which payment in full has not been received:-
on the Purchaser committing a breach of any of his obligations and having failed to remedy such breach (if capable of remedy) within 30 days of having received notice of breach from the other party;
if the Purchaser shall have any distress or execution levied upon his property, assets, goods or effects,
on the Purchaser ceasing to do business at any time for thirty consecutive days (other than for annual holidays)
on the Purchaser for any reason being substantially prevented from performing or becoming unable to perform his obligations hereunder;
on the Purchaser (if an individual) making or offering to make any arrangement or composition with his creditors whether under the Deeds of Arrangement Act 1914 or otherwise or on the Purchaser applying for an Interim Order under Part VIII of the Insolvency Act 1986 or on the purchaser having a bankruptcy petition presented against him;
on the purchaser (if a Company) passing any resolution to wind up the Purchaser or if a Receiver or an Administrative Receiver of the Purchaser's undertaking property or assets or any part thereof shall be appointed, or if an application is made for the appointment of an Administrator of the Purchaser, or if the directors of the Purchaser propose a composition of debts or scheme or arrangements;
on the control of the Purchaser passing from the present shareholders or owners of controllers to other persons whom the Company shall in its absolute discretion regard as unacceptable.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Contract or such other address as the recipient may designate by notice in writing given in accordance with the provisions of this Condition. Any such notice may be delivered personally or by first class pre-paid letter and shall be deemed to have been served if by personal delivery when delivered and if by first class post 48 hours after posting.
The Company and Purchaser hereby submit to the exclusive jurisdiction of the English Courts and the Contract and these conditions shall be governed by and interpreted in accordance with English Law.
No failure to exercise and no delay in exercising on the part of the Company of any of its rights, powers or privileges hereunder shall operate as a waiver thereof nor preclude any other or further exercise thereof.
24. SUBJECT TO APPLICABLE LEGISLATION
If any legislation is compulsorily applicable to any business undertaken by the Company, these terms and conditions, as regards such business, shall be read as subject to such legislation and nothing in these terms and conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these terms and conditions are prohibited by or declared void by or repugnant to such legislation to any extent such part shall as regards such business be overridden to that extent and no further.
25. VALIDITY OF CONDITIONS
In the event that any of these Conditions shall be found to be void but would be valid if some word, phrase or sentence thereof were deleted then such Condition shall apply with such modification as may be necessary to make it valid and effective.