ABALAN LIMITED

TERMS & CONDITIONS.

Definitions

(a) In these conditions:
”Buyer” means the buyer of goods or services.
“Conditions” means these terms and conditions of sale, its appendices and includes any special terms and conditions of sale agreed in writing between the buyer and seller.
“Contract” means any agreement for the supply of goods resulting from a purchase order and accepted by the seller in accordance with
Clause 5 (a);
“Force Majeure” includes (without limitation) acts of God or government, war, riot, fire, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind, or any other cause whatsoever beyond reasonable control of the seller (including delay by suppliers)
“Goods” means the goods including any installment of the goods or any part of them that the seller is to supply in accordance with the contract.
“Software” means the software to be supplied by the seller in accordance with the contract;
“Purchase Order” means the Buyers written order for goods or services which is placed online by the buyer on the website;
“Seller” means Abalan Limited. registered in England and Wales under number 4688129 or as appropriate any of its subsidiaries within the meaning section 736 companies act 1985;
“Services” means the services to be provided by the seller to the buyer in accordance with the contract;
“Website” means the website operated from time to time by the seller, the current URL of which is http://www.abalan.co.uk; and
“Writing” includes facsimile transmission, e-mail, and comparable means of communication.
(b) Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
(c) The headings in these Conditions are for convenience only and shall not effect their interpretation.

2. Status of Buyer- The Buyer confirms that it is not dealing as a consumer and that it is buying the goods for use in its business or the business of a third party end-user.

3. Application of Conditions- Every contract shall be subject to these conditions.  Any alternative terms or conditions or any addition or alteration to these conditions proposed by the buyer in its Purchase Order or otherwise shall not apply unless they are expressly accepted in writing by the seller. 

4. General- Any notice required or permitted to be given by either party to the other under these conditions shall be in writing and shall be addressed to the other party at its registered office or principal place of business or such other address as may be relevant at the time.
(b) Subject to these conditions, no failure by any party to exercise any right under any contract shall be deemed to be a waiver of any party’s rights thereunder or under any other contract save to the extent that such waiver is in writing and signed by an authorized representative of that party.
(c) If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.
(d) Any dispute arising under or in connection with these conditions shall be referred by arbitration by a single arbitrator appointed by agreement or in default nominated on the application of either party.
(e) These conditions shall be governed by the laws of England and Wales and the buyer agrees to submit to the exclusive jurisdiction of the
English courts.

5.  Obligations to supply Goods and/or provide Services- All quotations by the Seller must be accepted by the buyer by way of a
Purchase Order within thirty days starting from the date of quotation. Quotations are given subject to acceptance of such Purchase Order by the seller in writing.  No contract shall be concluded until either such a confirmation is given, an online order on the Website is confirmed by email or the seller proceeds with the fulfillment of the Purchase Order.
(b) The sellers catalogues, brochures, leaflets, or correspondence are not binding and unless specifically provided to the contrary in writing all specifications, photographs, measurements or capacities are approximate only and shall not form any part of any contract or be treated as constituting any warranty, representation, condition to the goods or services.
(c) Reasonable variations that do not affect to any material extent the performance of the relevant goods or services for the purposes specified by the buyer, may be made to the services without notice and/or, as the case may be the goods, so varied shall be deemed to comply with the contract.
(d) Where the services relate to the provision of truing the seller reserves the right to provide such services at a venue or venues other than the sellers premises and to provide personnel of its own choice.
(e) The seller reserves the right to refuse or curtail any training session if a delegate attending on behalf of the buyer fails to satisfy the requirements for such a course notified by the seller to the buyer prior to the commencement of such course.
6.Prices- the price of the goods or services shall be the seller’s quoted price or where no price has been quoted or a quoted price is no longer valid the price listed in the Seller’s current published price list at the time of acceptance of the purchase order. Prices will normally be held for a period of thirty days from the date of quotation.
(b) The seller reserves the right by giving notice to the buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost of the goods to the Seller which is due to any factor beyond the control of the seller such as, without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, significant increases in the cost of labour, materials or other costs of manufacture, any change in delivery dates, quantities, or specifications for the goods which are requested by the buyer or any delay caused by any instructions of the buyer or failure of the buyer to give the seller  adequate information or instructions.
(c) Except as otherwise stated under the terms of any quotation or any price list of the seller and unless otherwise agreed in writing, between the Buyer and the Seller, all prices quoted by the seller on an ex works basis and the buyer shall be liable to pay the seller’s charges for transport, packaging, and insurance.
(d) The price is exclusive of any applicable Value Added Tax the buyer shall be additionally liable to pay to the seller.

7.Terms of Payment-Where credit is given payment is to be made within thirty days of delivery without any deduction, counterclaim, or off-set by the buyer whatsoever.
(b) Where cash discounts are granted VAT is calculated on the discounted price.
(c) All express deliveries are charged extra on all orders regardless of invoice value.
(d) Interest at 2.5% per month or part thereof will be payable by the buyer to the seller on any overdue payments.
(e) If it appears to the seller that the buyer is unable to pay its debts, the seller shall (without prejudice) be entitled to demand adequate assurance of due performance by the buyer prior to delivery either by payment in cash or by a bank guarantee notwithstanding any terms of payment previously agreed and in the event that the buyer is unable to provide such an assurance the seller shall be entitled to withdraw from any contract without occurring any liability.  In such circumstances, all outstanding debts owed to the seller by the buyer shall become immediately due regardless of any payment terms.
(f) If (a) the buyer fails to make any payment under any contract when due; (b) any distress or execution is levied upon the buyer’s property or assets (c) the buyer makes or offers any arrangement or composition with its creditors (d) the buyer is a body corporate and any resolution or petition to wind up the buyers business (other than for amalgamation or reconstruction) is passed or presented;
(e) a receiver, administrator, manager, or analogous person is appointed in respect or the undertaking, property or assets of the buyer or any part thereof; or(f) the buyer is an individual, any grounds arise for the presentation of a petition for a bankruptcy order made under
Part IX Chapter 1 Insolvency act 1986 or any statuary reenactment or modification thereof or on the presentation of such a petition, the seller may immediately and without notice suspend or determine any contract or any part thereof, stop any goods in transit, in accordance with clause 9(c) enter the buyer’s premises to recover any goods for which payment has not been made in full and be entitled to immediate payment on any issued invoice.

8. Delivery- Unless expressly otherwise agreed delivery of the goods shall be made at the seller’s premises on notification by the seller that the goods are ready for collection and the buyer shall be entitled to collect them any reasonable time thereafter during usual business hours on reasonable notice.
(b) Any dates quoted for delivery are approximate only and the seller shall not be liable for any delay in the delivery of the goods caused by any factor beyond the control of the seller. Time for delivery shall not be of the essence of any contract unless previously agreed in writing by the seller. The goods may be delivered by the seller in advance of the quoted delivery date upon giving reasonable notice to the buyer.
(c) Where the goods are to be delivered in installments each delivery shall constitute a separate contract and failure by the seller to deliver any one or more of the installments in accordance with these conditions or any claim by the buyer in respect of any one or more installments shall not entitle the buyer to treat the contract as repudiated or to cancel any other installment.
(d) If the buyer fails to take delivery of the goods or fails to give the seller adequate delivery instructions at the time stated in the purchase order for delivery, then without prejudice to any other rights or remedy available to the seller, the seller may {i} Store the goods until actual delivery and charge the buyer for the reasonable costs thereof; including, without limitation, insurance costs; or {ii} terminate the contract forthwith and sell the goods.

9. Title and Risk- The ownership of the goods passes to the buyer on payment by the buyer of all monies due to the seller on any account whatsoever.
(b) The exercise by the seller of its rights under clause 9(c) below shall not prejudice the seller’s right to full compensation or its right to take back at once from the buyer, goods which are still the sellers property.
(c) The buyer shall store all goods delivered by the seller for which payment has not been made, in such a way as to be clearly separate and identifiable from the buyers goods and products and the buyer hereby grants to the seller, its servants or agents the right to enter on to the buyers premises for the right of recovering goods belonging to the seller.
(d) Notwithstanding the above, if the buyer sells any goods delivered in such a manner as to pass to a third party a valid title to the goods the buyer shall hold the proceeds, of such a sale on trust for the seller providing that nothing herein shall constitute the buyer the agent of the seller for the purposes of any such sub-sale. The buyer shall not be entitled to sell such goods after a receiver has been appointed to its property or after it has been placed in liquidation, or in administration or not being a company has committed an act of bankruptcy
(e) The buyer shall assume the risk of loss or damage from the date of delivery and must accordingly rely on its insurance from that date.
(f) Any goods supplied to the buyer that are subject to conditions or provisions by any manufacturer supplied to the buyer to the seller subject to any such restrictions or provisions.

10. Warranties and Liability- All goods are sold subject to the express warranty of the original supplier or manufacturer. The Seller will pass this to the buyer to the extent that it is able to do so, the benefit of such guarantee or warranty relating to the goods as it may receive from the manufacturer of the goods. Any software supplied to the buyer pursuant to the contract is supplied subject to the provisions of the licenser’s licensing terms, from time to time and the seller accepts no liability with regard to such software, save for those liabilities here in.
(b) Save as expressly provided in these conditions, the seller shall be under no liability to the purchaser under these conditions, any contract or otherwise for any loss or damage howsoever caused to the buyer or any other person including without limitation, any loss of profit, loss of earnings, damage to profit, business interruption, damage to reputation or goodwill or any indirect, special or consequent ional loss, or injury (save in respect of death or personal injury in respect of negligence) and any term , condition, or representation to the contrary, whether express or implied by statute, common law, or otherwise is hereby expressly excluded as far as it is possible to exclude it, save for fraudulent misrepresentation, to which this exclusion shall not apply.
(c) Where the contract relates to the provision of services the liability of the seller to the buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price paid by the buyer for the services.
(d) Where the contract relates to the supply of goods the liability of the seller to the buyer for any loss or damage of whatsoever nature and however caused shall be limited to and in no circumstances exceed the price paid for the goods by the buyer.

11. Defective Goods- The seller reserves the right at its sole discretion to decide whether any goods are defective.
(b) Defective goods will be replaced or rectified by the seller, as originally ordered or if rectification or replacement is not practicable, the seller will credit the buyer, the value of the goods at the invoice price.
(c) Claims under sub-clause (b) above must be made to the seller within seven days of the delivery date and the goods must be returned in accordance with clause 15 and the RMA procedure operated by the seller from time to time.
(d) The seller will not be liable for any loss, damage, or expense whatsoever and howsoever rising from any defect save as detailed in sub-
(b) thereof.
(e) Defects discovered in delivery shall not entitle the buyer to rescind the remainder of the contract.
(f) All transport costs incurred in returning the goods are the responsibility of the buyer.

 

12. Damage, Loss in Transit- The seller shall not be liable for any loss, damage, destruction, to any goods during transportation the goods to the buyer’s premises unless notice thereof is advised to the seller by telephone immediately on receipt of the goods and is confirmed in writing within 48 hours. The buyer shall at the same time notify the carrier in writing of any such error, loss or damage and shall in all cases, where possible enter a note on the carrier’s bill of loading or other delivery receipt. If by reason of the failure of the buyer to give any such notice as provided above, the seller is unable to make recovery from the carrier in respect of the loss, error, damage complained of, then the buyer shall be liable to pay for the goods as though no such error, loss or damage occurred. No liability for shortages will be accepted by the seller unless such a shortage is noted on the bill of loading or other delivery receipt.

13. Cancellation of Orders- Cancellation of orders cannot, in whole or part be accepted without the sellers consent in writing.

14. Force Majeure- If a performance of the seller’s obligations is delayed or hindered by circumstances amounting to a Force Majeure the following provisions will apply:-
[i] The seller will as soon as possible give the buyer notice of the reasons for the delay or hindrance. However failure to give notice will not prevent the seller relying on the remaining provisions of the clause and the seller will incur no liability for failure to give such notice
[ii] The Seller’s duty to perform shall be suspended for as long as the Force Majeure circumstances continue and the time for performance of the seller’s obligation shall be extended by a period equal to the duration of those circumstances.
(b) If due to Force Majeure circumstances there is a shortage of goods of a type to be supplied to a buyer and the seller’s other customers the seller may allocate the goods available to its customers as it thinks fit in that case:
[i] The buyer will accept any goods delivered to it and shall pay the appropriate part of the price for the goods; and [ii]  if the Force
Majeure circumstances continue for longer than 90 days then either party may by notice in writing to the other party cancel the contract
in so far as goods remain to be delivered the reunder, after which the seller will have no obligation to deliver and the buyer will have no obligation to accept delivery of the undelivered goods but the contract shall remain in force in respect of all goods delivered prior to such
a cancellation.

15. RMA Procedure- If goods supplied by the seller prove to be defective within a warranty period an RMA number will be issued on notification of a fault and the buyer shall return the goods to the seller in accordance RMA Procedure operated from time to time. The seller will provide details of the RMA procedure on request. No goods may be returned except pursuant to the RMA Procedure.  No goods may be returned without the RMA number being shown in the packaging. Goods returned without a valid RMA number will be refused or returned.