Conditions of Sale
1.1 In these conditions the following words shall have the following meanings: –
“Agreement” means the agreement entered into between Ardent and the Customer for the sale and purchase of Equipment and Services, of which these terms and conditions form a part;
“Ardent” means Ardent Limited and any of its subsidiaries or associated companies from time to time;
“Cancellation Fee” means the fee payable in accordance with clause 9.1;
“Customer” means the person firm or company which purchases the Equipment and Services from Ardent;
“Delay Fee” means the fee payable in accordance with clause 10.1;
“Engineer” means an engineer employed or sub-contracted by Ardent;
“Ex-works” has the meaning as defined in Incoterms 2000;
“Installation Site” means the plant, machinery, vehicle or premises into or onto which the Equipment are to be installed by Ardent;
“Equipment” means fire safety and protection equipment and any other goods agreed to be supplied by Ardent to the Customer;
“Particulars” means all drawings, illustrations, written descriptive matter, and the like (including but not limited to any weights and dimensions stated) either accompanying any Specification, estimate or acknowledgment of order, or contained in Ardent’s catalogues or other marketing material;
“Services” means any services to be supplied to the Customer by Ardent in relation to the Equipment;
“Specification” means a written specification expressly issued as such by Ardent in relation to any Equipment;
“VAT” means value added tax and any other taxes which may be applied to the sale of goods and/or supply of services under this Agreement from time to time.
1.2 Clause headings are for convenience only and shall not affect the interpretation of these terms and conditions. Except where the context otherwise requires, references to the masculine shall include the feminine and vice versa and references to the singular shall include the plural and vice versa.
1.3 These terms and conditions and all documents referred to in them apply to and are deemed to be incorporated into this Agreement and, unless otherwise expressly agreed in writing by Ardent and the Customer, all other terms and conditions will not form part of and are excluded from this Agreement.
2. SPECIFICATION AND DESCRIPTION
2.1 Specifications and estimates issued by Ardent do not constitute an offer by Ardent to sell any goods or supply any services. An Agreement shall only be formed upon Ardent accepting the Customer’s order, by issuing an order acknowledgement. The Customer shall ensure that the terms of its order are complete and accurate.
2.2 The contents of all estimates and any Specification are subject to alteration in the order acknowledgement.
2.3 Ardent reserves the right to alter any Particulars without notice to the Customer. All Particulars are intended to present only a general idea of the goods and/or services described in them and are approximate only. In no case shall any Particulars constitute a warranty or condition of this Agreement, a description of any Equipment or Services or a representation inducing the Customer to enter into this Agreement.
2.4 The description of the Equipment shall be as set out in the Specification.
3. CUSTOMER’S RESPONSIBILITIES
3.1 The Customer shall provide to the Engineer:
(a) access to the Installation Site; and,
(b) any electricity or water,
which may be required by the Engineer for the purpose of carrying out any Services.
3.2 The Customer shall ensure that the Installation Site is safe and without risk for Ardent’s employees, servants or agents to work on or in, in order to fulfill Ardent’s obligations under this Agreement. Any and all known risks must be clearly identified to the Engineer and marked by the Customer.
3.3 If the Engineer reasonably considers that the Customer has not complied with its obligations under clause 3.2, then the Engineer shall inform the Customer of his concerns and Ardent’s obligations under this Agreement shall be suspended (without liability to Ardent) unless or until the Engineer’s concerns are remedied to his reasonable satisfaction. If the Engineer’s concerns are not remedied to his reasonable satisfaction by the Customer then the Cancellation Fee shall be payable.
4.1 Ardent may, at any time up to issuing an order acknowledgement, adjust all estimated prices to allow for increases in labour and/or material costs since the date of the estimate.
4.2 Subject to clause 4.1, the price for the Equipment and/or Services shall be the price set out in Ardent’s estimate or, if Ardent has not issued an estimate, in Ardent’s price list current on the date this Agreement is made. The price shall be confirmed in the order acknowledgement. Ardent shall be entitled to invoice in installments.
4.3 If the estimate is provided in a currency other than English pounds sterling the price shall be calculated by converting the value of the estimate into English pounds sterling at the exchange rate quoted in the estimate.
4.4 Unless otherwise agreed, the price shall be Ex-works.
4.5 All prices estimated or quoted are stated exclusive of VAT, which shall be added to invoices at the rate applicable from time to time.
4.6 The price does not include any costs, charges, fees, taxes or other expenses which are not expressly stated to be included in it (whether in these conditions, any estimate or the order acknowledgement).
4.7 Ardent may from time to time invoice the Customer for any such further costs, charges, fees, taxes or expenses incurred by Ardent which are not included within the price.
5.1 The time for payment shall be of the essence of this Agreement.
5.2 Unless otherwise expressly stated in the order acknowledgement, payment, in cleared funds, shall be due on or before the 30th day after the date of invoice.
5.3 All payments must be made in English pounds sterling.
5.4 Ardent shall be entitled to charge interest on any overdue payments at a rate of 3% above HBOS base rate, accruing on a daily basis from the due date for payment until the date payment is made, whether before or after any judgment.
6. DELIVERY AND ACCEPTANCE
6.1 Unless otherwise agreed in writing, delivery shall be Ex-works.
6.2 Any date(s) specified by Ardent for delivery of the Equipment is/are intended to be an estimate only and, notwithstanding any notice issued by the Customer, time for delivery shall not be of the essence of this Agreement. Ardent will not be liable for any delay in delivery, howsoever caused, or for any loss or damage arising therefrom. The Customer shall not be entitled to rescind or terminate this Agreement for delay in delivery unless delivery is delayed for more than 180 days.
6.3 Delivery may take place in installments.
6.4 If the Customer fails to accept delivery of the Equipment when they are ready for delivery, or if Ardent is unable to deliver the Equipment because the Customer has not provided appropriate instructions, documents, licences, or authorisations then:
(a) risk in the Equipment shall pass to the Buyer;
(b) the Equipment will be deemed to have been delivered; and
(c) Ardent may store the Equipment until actual delivery at the cost of the Customer.
6.5 At the time and place of delivery, the Customer will provide (at its own cost) adequate and appropriate equipment and manual labour for unloading the Equipment.
6.6 Unless otherwise agreed in writing, the Customer shall be responsible to obtain all necessary permits, consents or import or export licences from all government or other authorities and make all applications, give all notices and pay all customs duties, fees and other amounts required for the delivery of the Equipment.
6.7 The Customer shall be deemed to have accepted the goods upon signature of the hand-over certificate or within 14 days of delivery, whichever occurs sooner.
7. RISK AND TITLE
7.1 Subject to clause 7.2, risk in the Equipment shall be Ex-works.
7.2 If Equipment remains at Ardent’s risk whilst in transit to the Customer, Ardent will only replace any Equipment lost or damaged during such transit if the:
(a) Customer notifies Ardent of the alleged loss or damage within seven days of the earlier of (i) notification to the Customer of the loss or (ii) delivery of the Equipment to the Customer;
(b) Ardent is given an opportunity to and does verify the Customer’s allegation of loss and damage; and
(c) Customer returns any allegedly damaged Equipment to Ardent with the prior written authority of Ardent.
7.3 Title to any Equipment shall remain in Ardent until the Customer has paid:
(a) the price and all other sums due in respect of those Equipment; and
(b) any other monies owing to Ardent under any other agreement between Ardent and the Customer.
7.4 Until ownership of the Equipment has passed to the Customer, the Customer must:
(a) hold the Equipment on a fiduciary basis as Ardent’s bailee;
(b) store the Equipment separately from all other goods of the Buyer in such a way that they remain readily identifiable as Ardent’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment;
(d) maintain the Equipment in satisfactory condition insured on Ardent’s behalf for its full price against all risks to the reasonable satisfaction of Ardent; and
(e) hold the proceeds of such insurance on trust for Ardent and not mix them with any other money, nor pay them into an overdrawn bank account.
7.5 The Customer’s right to possession of the Equipment shall terminate immediately if:
(a) an Event of Insolvency occurs; or
(b) payment for the Equipment is overdue in whole or in part.
7.6 Where the Customer’s right to possession of any Equipment has terminated, the Customer grants Ardent, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to recover it.
7.7 Ardent shall be entitled to recover payment for any Equipment notwithstanding that ownership of it has not passed from Ardent.
8. WARRANTIES, PERFORMANCE GUARANTEE AND LIABILITY
8.1 Ardent does not warrant or otherwise undertake that the Equipment will be fit for any purpose involving use in adverse industrial atmosphere or extremes of weather or abnormal operating conditions of any kind.
8.2 Ardent warrants that the Equipment shall be of satisfactory quality within the meaning of the Sale of Goods Act 1994, and be reasonably fit for the purpose of fire suppression.
8.3 This clause sets out the Customer’s sole remedy for breach of clause 8.2. Subject to clause 8.6, Ardent undertakes to remedy any defect in the Equipment arising within one year of the date of delivery, from faulty material or faulty workmanship, provided that:
(a) the defect developed under proper and normal working conditions;
(b) notice of the defect is given in writing to Ardent as soon as reasonably practicable after its discovery;
(c) the Equipment has been serviced as per the manufacturer’s guidelines supplied in the Equipment’s maintenance manual;
(d) (unless the Equipment concerned has been installed by Ardent) the Equipment is returned carriage paid to Ardent within fourteen days of the defect appearing.
8.4 When replaced, any defective parts shall become the property of Ardent.
8.5 Nothing in these terms and conditions shall limit or exclude the liability of Ardent in respect of death or personal injury arising from its negligence or the negligence of its employees or agents when acting in the course of their employment or for fraudulent misrepresentation.
8.6 Ardent shall be under no liability in respect of defects in the Equipment arising from any repair alteration, or other act performed in relation to the Equipment by the Customer, its employees or agents, unless such repair, alteration or act was performed on the instruction of and using components supplied by Ardent.
8.7 Except as expressly written in these terms and conditions all representations, guarantees, undertakings, conditions or warranties, express or implied, statutory or otherwise in relation to the Equipment are hereby expressly excluded from this Agreement.
8.8 Ardent shall not be liable to the Customer for any indirect or consequential loss or damage (including without limitation loss of production, loss of profit or liability to third parties) arising out of or in connection with this Agreement.
8.9 Subject to clause 8.5, Ardent’s total liability in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid pursuant to this Agreement.
9. CANCELLATION AND FORCE MAJEURE
9.1 If the Customer cancels an order then it shall pay to Ardent on demand a sum equivalent to all Ardent’s costs fees and expenses incurred in meeting the order, including any damages payable to Ardent’s sub-contractors, suppliers and others, together with a reasonable proportion of Ardent’s overheads, as well as a reasonable proportion of Ardent’s loss of anticipated profits on the order (the Cancellation Fee).
9.2 Ardent shall not be liable to the Customer by reason of its failure to perform or delay in performing any of its obligations under this Agreement if such failure or delay is due to or results from any circumstances beyond its reasonable control including, without limitation, acts of God, breakdown of plant or apparatus, acts or omissions of third parties (including but not limited to those responsible for transportation), fire, explosion, flood, epidemic, accident, strike, lock-out or other labour disputes, governmental actions, war or national emergency, riot or civil commotion.
10.1 If for any reason the Customer, his employees, servants or agents by their conduct renders Ardent’s obligations under this Agreement impossible of performance or completion during Ardent’s normal working hours, Ardent reserves the right to charge the Customer in respect of any loss, damage, costs or charges which may be incurred by Ardent as a result of the Customer’s conduct or non-compliance with these Terms and Conditions (the Delay Fee).
10.2 All Specifications and estimates assume that Ardent will have continuous and uninterrupted working time and free access to all necessary areas of the Installation Site. Ardent reserves the right to charge the Customer the Delay Fee in the event that any interruptions or delays to Ardent are caused by the Customer, its employees, agents or other persons.
10.3 The Customer is responsible for ensuring that any services to be provided by other trades are programmed to avoid such interruptions, delays and additional fees.
11. DEFAULTS AND CUSTOMER’S INSOLVENCY
(a) the Customer is in default or breach of any of its obligations under this Agreement;
(b) any payment or part thereof is overdue under this Agreement;
(c) any distress, execution or other legal process is levied upon the Customer’s property;
(d) the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy;
(e) any petition or receiving order is presented or made against the Customer; or
(f) any resolution or petition to wind up the Customer or to appoint an administrator to it shall be passed or presented, or a receiver manager or administrative receiver of all or any of its assets shall be appointed;
(each of which shall be an “Event of Insolvency”) then by notice in writing to the Customer and without incurring any liability for any loss caused by such delay or cancellation Ardent may:
(i) terminate this Agreement; or
(ii) cancel any outstanding delivery under it and, notwithstanding any other provisions of this Agreement, payment in respect of any delivery already made under this Agreement shall be immediately due and payable.
11.2 Termination of this Agreement for whatever reason shall not affect the accrued rights or remedies of either party at the date of termination and all rights express or impliedly intended to survive termination shall do so.
Any notice required or authorised to be given under this Agreement shall be in writing and sent by registered post to the relevant party’s registered office, or such other address as shall be used by such party in correspondence.
13.1 The Customer must not assign or attempt to assign or delegate any right or obligation under this Agreement without Ardent’s prior written consent.
13.2 Ardent may assign this Agreement or any part of it to any person firm or company.
14.1 Should any term of this Agreement be found to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable then it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable from the remaining provisions of this Agreement, which shall continue in full force and effect.
14.2 This Agreement represents the entire understanding between the parties in relation to its subject matter and all other agreements and representations made by either party in relation to the subject matter of this Agreement, whether oral or written, are superceded and/or excluded by this Agreement.
14.3 Failure or delay by Ardent to exercise or enforce (in whole or in part) any right conferred by this Agreement will not be construed as a waiver of any such right nor operate as a bar to the exercise or enforcement of it, or any other right, on any later occasion.
14.4 This Agreement may only be varied by agreement between the parties in writing and signed by a duly authorised representative of each party.
14.5 The parties to this Agreement do not intend that any term of this Agreement will be enforceable by any person that is not a party to it pursuant to the Contracts (Rights of Third Parties) Act 1999.
14.6 The rights and remedies of Ardent under this Agreement are independent and cumulative and without prejudice to any other of its rights under this Agreement or general law.
14.7 This Agreement shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English Courts.
14.8 Without prejudice to either party’s other rights and remedies set out in this Agreement, in the event of any dispute or complaint on any subject arising out of or relating to the performance of this Agreement (“dispute”), the parties will promptly discuss the dispute in good faith and use their best endeavours to resolve it. The escalation path for any dispute will be discussions between members of the senior management of either party. Either party may by written notice escalate a dispute to the next level at any time. Either party may rely on its other rights and remedies to deal with a dispute at any time.