Standard Conditions of Sale Of Arena Sun Control Systems Ltd
1. Definition of interpretation
1.1 "Arena" shall mean Arena Sun Control Systems Ltd, whose address for service is Arena House, Unit 2, Churchill Business Park, Colwick, Nottingham, NG4 2JR.
1.2 The "Customer" shall mean any person (which includes any individual, partnership, unincorporated business or incorporated business) to whom Arena shall agree to sell Goods.
1.3 "Goods" shall mean the goods (including any instalment of the goods or any part of them) which Arena is to supply in accordance with these Conditions of Sale.
2. Formation of Contract
2.1 All orders and Contracts shall be in writing or otherwise by such method as Arena shall accept. Arena is not willing to contract otherwise than on these Conditions of Sale which shall be deemed to be incorporated into any order accepted by Arena whether or not it is based upon or results from any advertisement, quotation or catalogue to the exclusion of any terms of the Customer insofar as the same is inconsistent herewith. No modifications of these Conditions of Sale shall be effective unless the same is in writing and signed by an authorised signatory of Arena.
2.2 If a Contract has not been concluded between Arena and the Customer within a period of ninety days from the date of the quotation, and subject to the Goods not being withdrawn, Arena reserves the right to re-quote for such goods and Arena may at its discretion refuse to accept any order which constitutes part only of the Goods forming the subject of a quotation.
2.3 Any quotation shall be regarded as an invitation to treat. Each order or acceptance of a quotation for Goods by the Customer from Arena shall be deemed to be an offer by the Customer to buy Goods subject to these Conditions of Sale .
2.4 Unless made by Arena in writing, Arena's employees or agents are not authorised to make any representations. In placing an order the Customer acknowledges that it does not rely on and waives any claim for breach of any representations other than those made in writing by Arena.
2.5 Any advice or recommendation given by Arena or it's employees or agents to the customer or it's employees or agents as to the storage or application or use of the Goods which is not confirmed in writing by Arena is followed or acted upon entirely at the customer's own risk and accordingly Arena shall not be liable for any such advice or recommendation which is not confirmed.
3.1 Unless otherwise stated in the quotation or acceptance by Arena prices are in Pounds Sterling on an ex works basis and are exclusive of any Value Added Tax or other applicable national tax for which the Customer shall be additionally liable.
3.2 Where Arena agrees to deliver the Goods and/or package the Customer shall be liable to pay Arena's charges for transportation, packaging, insurance, loading and unloading as indicated in Arena's service guide prevailing at the date of the Customer's order.
3.3 The rates and prices given in the Price Lists or in the quotation are not subject to any discount, whether trade or cash except such as expressly specified in the quotation.
4.1 Where it has been agreed that the Goods will be delivered to the Customer:
4.1.1. Nothing herein shall preclude Arena from arranging the delivery of the Goods to the Customer in advance of the indicated delivery time.
4.1.2. Delivery shall be to the destination specified by the Customer in the order. Arena shall not be bound to deliver to any other destination but in the event of an agreement to deliver to any alternative destination, the Customer will be charged for any increased costs thereby incurred in addition to the contract price.
4.1.3. Delivery dates (where given) are quoted in good faith by Arena and are based upon the date of the receipt of the order but not guaranteed. Time of delivery is not of the essence.
4.1.4. Goods shall be examined immediately upon arrival and any apparent damages or shortages shall be noted on the carriage consignment note and shall be reported in writing or via email to Arena and to the carriers so that such notification is received not later than 48 hours after delivery. The Customer shall indemnify Arena against any loss suffered because of its inability to claim against the carriers as a result of the breach of the provision by the Customer.
4.1.5. The Customer shall have a period of seven (7) days following the delivery in which to examine the goods and to notify Arena in writing of any intention to reject them on grounds upon which they are alleged to be defective. If this period expires without Arena receiving any intimation of rejection the Customer will be deemed to have accepted the Goods according to section 35(1) of the Sale of Goods Act 1979 and will therefore be bound to pay for them.
4.1.6. Delivery shall be deemed to have taken place when the Customer takes possession of the Goods.
4.1.7. Whilst Arena will make every possible effort to meet delivery dates, it will not in any circumstances be liable for any failure to do so, nor any consequential loss arising from late delivery.
4.2 Where the Customer requires the Goods to be exported, the Contract shall be free on board (f.o.b.) (unless otherwise agreed with the Customer) but the responsibility of Arena shall cease immediately when the Goods are placed on board ship and Arena shall be under no liability to give the Customer the notice specified in section 32(3) of the Sale of Goods Act 1979.
4.3 In the event that the Goods are collected by the Customer the risk in the Goods shall pass to the Customer at the time of such collection and no liability will be accepted by Arena for any damage to the Goods notified to Arena after the time of collection unless such damage was not apparent from a reasonable inspection on collection by the Customer.
5. Sale by Sample
In accordance with clause 4.1.5 above the Customer shall have a period of seven (7) days following delivery in which to notify Arena in writing of any alleged discrepancy between the sample and the bulk. The absence of any such notification will constitute acceptance of the bulk.
6. Force Majeure
In the event that Arena shall be delayed in or prevented from carrying out any of its obligations under a Contract as a result of any cause beyond its control including (but not by way of limitation) war, invasion, hostilities, any act of God, governmental and civil war, strife or commotion, strikes, lock-outs, break down of plant, failure of third party to deliver goods or materials, storm, flood, fire or any other cause Arena shall be at liberty (at its election) to suspend the Contract in which case it shall be relieved of all its obligations and liabilities incurred under such Contract insofar as and for so long as the fulfilment of such obligations and liabilities is thereby prevented, frustrated or impeded or to cancel the Contract without incurring any further liability whatsoever.
7. Terms of Payment
7.1 In all cases payment of the price of the Goods shall be no later than the twentieth (20th) day of the month following the date of the invoice. If the Customer is in default of this condition the Customer shall in addition pay interest upon the balance outstanding calculated on a daily basis at 3% above the Bank of England base rate from time to time in force from the date of the default until the date that payment is received.
7.2 Extra costs shall be paid when invoiced by Arena.
7.3 In the case of orders outside the United Kingdom and at the discretion of Arena payment should be made by letters of irrevocable Credit but in all other cases payment should be made by Bankers Draft. Credit may be given at the discretion of Arena but it may be drawn by Arena at is absolute discretion.
7.4 In the event of the customer failing to comply with the provisions for payment contained in the preceding sub-clauses or in the event of any dispute or delay in payment or retention made by the Customer this shall be regarded as a breach of condition and Arena shall be entitled to treat such failure as repudiation of the contract and of all other contracts between Arena and the Customer and without prejudice to all other rights of Arena to claim damages or any other relief, Arena may without notice refuse the collection of the goods by the customer or suspend any further deliveries to the customer (as the case may be) in relation to the contract concerned or any other contract without liability to the customer for any loss or damage however arising. All the money owing to Arena by the Customer under any contract shall become immediately due and payable.
7.5 In the event of the Customer purporting to make payment and the cheque presented being dishonoured at first presentation (or any subsequent presentation) then Arena will charge a fee for each dishonoured cheque of £15 (exclusive of VAT). A separate invoice will be raised to the customer payable with immediate effect.
8.1 Subject to the conditions set out below, Arena warrants that the Goods will correspond with their specification at the time of delivery or supply, will be of satisfactory quality and will be fit for the purpose for which they are commonly bought and for the purpose for which they have been designed. Arena does not give warranty as to fitness for any other purpose whether or not such purpose shall have been made known to Arena.
8.2 The above warranty is given by Arena subject to the following conditions:
8.2.1 Arena shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal use or application, failure to follow Arena's instructions (whether oral or in writing), misuse or alteration of the Goods;
8.2.2. Arena shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.3 Except as expressly provided in these Conditions of Sale, all warranties, conditions or other terms implied by statute or common law (save for the condition implied by section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
8.4 Where the customer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977) the statutory rights of the consumer are not affected by these conditions.
8.5 Any claim by the Customer which is based on any defect in the condition of the Goods or in the quality of the Goods or their failure to correspond with the specifications shall (whether or not delivery is refused by the Customer) be notified to Arena in writing specifying the defect or failure alleged within seven (7) days from the date of delivery or supply, failing which the Customer shall not be entitled to reject the Goods and Arena shall not have liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods have been delivered or supplied in accordance with the Contract provided that if the Goods have been used by the Customer prior to such notification then the rights outlined in this clause are forfeited.
8.6 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 specifications is notified to Arena in accordance with these Conditions of Sale, Arena shall be entitled at its sole discretion to replace the Goods (or the part in question) or perform any work of rectification free of charge or refund to the Customer the price of the Goods (or proportionate price) but Arena shall have no further liability to the Customer.
8.7 Except in respect of death or personal injury caused by Arena's negligence, Arena shall not be liable to the Customer by reason for any representation or any implied warranty, condition or other term or any duty of common law or under the expressed terms of the Contract for any loss or damage (whether loss or profit or otherwise), costs or any indirect or consequential loss whatsoever (and whether caused by the negligence of Arena, its employees or agents or otherwise) which arise out of or in connection with the provision of Goods or in the use or resale of the Goods by the Customer except as expressly provided in these Conditions of Sale.
8.8 Arena shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of Arena's obligations in relation to the Goods if the delay or failure was due to any cause beyond Arena's reasonable control.
9. Limitations of liability
9.1 The limit of Arena's liability hereunder for any breach of the terms of these Conditions of Sale whether as damages or otherwise shall be the Contract price of the Goods.
9.2 Arena shall not be responsible for the design of the Goods ordered by the Customer unless expressly agreed by Arena in writing.
9.3 Under no circumstances shall Arena be liable for any claim made by the Customer neither for consequential loss or damage nor for economic loss howsoever arising.
10. Retention of Title
10.1 Legal and beneficial title to the Goods shall not pass to the Customer until the Customer shall have paid for the Goods and all sums due to Arena (and any incidental costs and expenses of sale including (but not limited to) the various costs listed in clauses 3.2 and 3.3) above in full.
10.2 Until title to the Goods has passed, the Customer, as bailee for Arena, shall keep the Goods separate and distinct from any other goods in the Customer's possession and identifiable as being the property of Arena.
10.3 The Customer shall permit Arena at any time during normal working hours upon request forthwith to enter any premises of the Customer to ensure that the Customer is complying with clause 10.2 and will forthwith at its own expense implement any reasonable instructions of Arena necessary to secure compliance.
10.4 Until such time as the title to the Goods passes to the Customer, the Customer may in the ordinary course of the Customer's business use or sell the Goods at full market value and as principal and not as an agent for Arena but shall hold the benefit of any such contract for sale on trust for Arena to the extent of Arena's price (including any incidental costs and expenses) and shall accordingly account to Arena for such amount of the proceeds of sale on receipt.
10.5 The Customer will keep the Goods free from and, will indemnify Arena against, any charge, lien or other encumbrances thereon.
10.6 The power of the Customer to use or sell the Goods shall cease:
10.6.1 Forthwith upon notice (whether written or oral) by Arena given at any time after the Customer shall have been in default for more than seven (7) days in payment of any sum whatsoever due by the Customer to Arena;
10.6.2 If the Customer is a company, automatically upon the happening of any of the following events:
10.6.2.1 The appointment of a Receiver or Manager (including Administrative Receiver);
10.6.2.2 The convening of a meeting for the purposes of the voluntary winding up (other than for reconstruction or amalgamation).
10.6.2.3 The presentation of a petition to wind up the Customer or for an administration order under the Insolvency Act 1986; or
10.6.2.4 The summoning of a meeting under section 3 of the Insolvency Act 1986 or otherwise for the purpose of proposing any arrangement or composition with the creditors.
10.6.3 If the Customer is an individual or a firm, automatically upon the happening of the following events:
10.6.3.1 If a bankruptcy petition is presented under the Insolvency Act 1986; or
10.6.3.2 If the Customer applies for an order under section 253 of the Insolvency Act 1986 or calls a meeting for the purpose of making any arrangement or composition with its creditors.
10.7 After the power to use or sell has ceased the Customer will deliver up the Goods to Arena and hereby irrevocably authorises Arena to enter any premises of the Customer or any third party where the Goods may be stored for the
purpose of finding and/or taking delivery of the same and any costs incurred by Arena in the performance of this clause shall be immediately recoverable from the Customer as a debt due from the Customer together with interest thereon from the date the debt falls due until judgement (if later).
11. Passing of Risk
Notwithstanding that the title to the Goods may not have passed, the Goods are at the entire risk of the Customer from the date that the same are in a deliverable state.
Without prejudice to any other rights that Arena may have for damages for breach of Contract or otherwise against the Customer, Arena shall be entitled in the event of the Customer becoming insolvent or bankrupt or having made any arrangement with its creditors, ceased to trade or stopped payment of its debts or suffered a receiver to have been appointed over any of its assets or failed to satisfy any judgment debt within seven (7) days of the same becoming payable, to suspend all further deliveries under any Contract between the Customer and Arena.
It is hereby confirmed that the rights of Arena shall not be diminished or waived by any indulgence or forbearance extended to the Customer and no waiver by Arena of any specific breach on the part of the Customer shall operate as a waiver for any other breach.
Where goods are purpose made, no order which has been accepted by Arena may be cancelled by the Customer except with the agreement in writing of Arena and on the terms that the Customer shall indemnify Arena in full against all losses (including loss of profit), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by Arena as the result of the cancellation).
Arena may assign the Contract to any person, firm or company.
Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that party at its registered office or principal place of business or such address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
17. Construction and Choice of Law
These conditions shall be constructed in accordance with the Laws of England and Wales whose Courts shall have sole jurisdiction over all matters arising hereunder We confirm receipt of a copy of the new standard Conditions of Sale of Arena Sun Control Systems Ltd and acknowledge that all future contracts shall be subject to these Conditions of Sale.