1.1 “Acare” shall mean Acare Leisure Limited (registered number 05887614 whose registered office is situated at Unit 12 Vennlands Business Centre Mart Road Minehead Somerset TA24 5BJ.
1.2 “Buyer” shall mean the person, firm or company who places an order with Acare.
1.3 “Goods” shall mean the goods and/or services to be supplied by Acare.
1.4 “Price List” shall mean Acare price lists published from time to time.
1.5 “Price” shall mean the sum stated to be paid by the Buyer to Acare for the supply of Goods together with such other sums as may be payable to Acare under these Conditions.
1.6 “VAT” shall mean Value Added Tax.
2.1 The contract will be upon these Conditions which supersede all other terms and conditions.
2.2 If the Buyer places an order for delivery of Goods this shall be deemed to constitute unqualified acceptance of these Conditions.
3. TITLE IN PROPERTY
The property in the Goods shall remain with Acare until the Buyer has paid to Acare the Price of all Goods supplied and all other sums owed by the Buyer at any time to Acare on any ground whatsoever (including, without prejudice to the generality of the foregoing, all sums owed to Acare by the Buyer at any time in respect of any supply of goods under any other contract).
4. CONTRACT PRICE
4.1 The price payable shall be the price shown in the Acare Price List (available on request) current at the date of acceptance of the Buyer’s order, subject to additional pre-agreed terms as notified to the Buyer in writing.
4.2 Prices are exclusive of freight, carriage and VAT.
4.3 All Prices may be subject to alteration without notice.
4.4 Special orders placed with Acare may be subject to special prices which will be given at the time of order placement and will be deemed to be binding solely for that particular order.
4.5 All sums due under the contract are exclusive of VAT or other similar sales taxes which shall be paid by the Buyer.
5. PAYMENT TERMS
5.1 Acare shall be entitled to raise an invoice for the Goods upon delivery.
5.2 The Buyer shall pay Acare in full within 30 days of the date of invoice. Time for payment shall be of the essence.
5.3 Until payment in full has been received Acare reserves the right to:
5.3.1 charge interest on a daily basis on all sums not received by the due date at the rate of 2% per annum above the current base lending rate of National Westminster Bank plc whether before or after judgement;
5.3.2 withhold or suspend performance of any contractual obligation to the Buyer without notice, while any account with Acare remains overdue;
5.3.3 terminate the contract if the delay in payment exceeds thirty (30) days; and
5.3.4 Charge the Buyer for all costs incurred during the recovery of an outstanding debt.
5.4 No payment will be deemed to have been received until Acare has received it in cleared funds.
6. PASSING OF THE RISK
Risk in the Goods will pass to the Buyer upon delivery or if earlier when they are placed at the Buyer’s disposal. Acare shall be entitled to make delivery by installments in which case each instalment shall be regarded as constituting a separate agreement to which these conditions apply.
7.1 Any date or period for delivery shall be considered as indicative only and not contractually binding upon Acare. After the Buyer’s order is accepted and the Buyer’s payment has cleared we will endeavor to deliver within five working days.
7.2 If Acare are delayed in the performance of the contract by any act or default on the Buyer’s part, or any industrial dispute or any circumstance beyond our reasonable control then the Delivery Date shall be extended by such period as may be reasonable.
7.3 Orders forwarded through third party carriers may be subject to an additional carriage charge at the prevailing rate at the time of despatch.
8.1 The Buyer must upon receipt inspect all Goods and inform the courier by marking the courier’s paperwork appropriately to indicate if there is any damage or problem with the goods on receipt. The Buyer must also inform Acare by telephone on the day of receipt (or by leaving a message on Acare’ answer phone if the office is closed) if a claim for damage or loss in transit of the Goods is to be made. In respect of the Buyer’s obligations hereunder time shall be of the essence. In the event of non-delivery the Buyer must give written notice to Acare immediately upon whichever shall be the earlier of receipt of our invoice or, where an estimated arrival time has been given, upon expiry of that time. NO CLAIMS WILL BE CONSIDERED AND NO LIABILITY ACCEPTED BY Acare UNLESS NOTIFICATION IS RECEIVED WITHIN THE TIME SPECIFIED UNLESS OTHERWISE REQUIRED BY LAW. THIS DOES NOT AFFECT THE BUYER’S STATUTORY RIGHTS.
8.2 Acare shall in no circumstances be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law or under the express terms of the Agreement for any indirect or consequential loss or damage, including in particular, loss of anticipated profits, goodwill or reputation which arise out of or in connection with the supply of Goods or their use by the Buyer.
9. RETURNED GOODS
At our sole discretion Acare may accept goods returned in a good and resaleable condition and in original packaging (repacked in the manner in which they were delivered to the Buyer) in which case a handling charge of 25% will be payable by the Buyer when the Goods are returned. The handling charge will be quoted as a percentage of the net invoice value of the Goods returned.
10.1 Acare shall as soon as is practicably possible notify the Buyer of any proposed improvements, modifications or changes to the components or material composition of the Goods.
10.2 The Goods are not tested or sold as fit for any particular purpose as this will vary according to the Buyer’s requirements and the Buyer must rely on the Buyer’s own skill and judgement and enquiries in deciding whether the Goods are fit for a particular purpose. The Buyer acknowledges that the Buyer is in the best position to make these decisions.
10.3 All samples, drawings, descriptive matter and advertising issued by Acare (or the manufacturer of the Goods) and any description or illustration contained in our catalogues or other literature are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
11.1 Acare reserves the right where, in its reasonable opinion, a defect in Goods is (or may be) covered by a manufacturer’s warranty to direct the Buyer to resolve any such claims directly with the manufacturer in accordance with the manufacturer’s warranty. To the extent that such defect is covered by the manufacturer’s warranty Acare will not be liable to the Buyer for any damages, costs, losses or other liabilities incurred by the Buyer in respect of such defect.
11.2 The Buyer is responsible for ensuring the Goods ordered are suitable for the purpose for which they were required.
12. LIMITATION OF LIABILITY
12.1 Neither party shall be liable to the other for any indirect or consequential loss or damage, loss of profit, loss of use or production or of contracts which the other may suffer arising out of any breach by a party of its obligations under the Contract and whether the same be due to negligence by that party or not.
12.2 Nothing in these conditions affects the Buyer’s statutory rights.
12.3 So far as such exclusion is permitted by English Law, any express or implied condition or warranty or term statutory or otherwise as to the quality, fitness, compliance with description, or sample of the whole or any part of the Goods, or replacement thereof, or as to the quality of any work or repair or replacement is hereby excluded.
13. LICENCES AND CONSENTS
If a licence or consent of any government or other authority is required for the acquisition, carriage or use of Goods by the Buyer, the Buyer shall obtain the licence or consent at its own expense and if requested produce evidence of it to the Seller on demand.
14. HEALTH AND SAFETY
14.1 The Parties shall comply with all current Safety and Environmental legislation in the performance of this Contract.
14.2 The Buyer shall advise Acare what safety requirements and obligations apply to the Buyer’s business and premises under Health and Safety legislation or regulations.
14.3 LPG goods are supplied on the condition that they will be fitted by a qualified LPG gas
15. TERMINATION PROVISIONS
15.1 Acare may terminate the Contract with immediate effect by notice in writing to the Buyer on or at any time after the occurrence of any of the following default events:
15.1.1 A receiver or administrative receiver is appointed in respect of the Buyer or over all or part of the Buyer’s assets or undertakings if the Buyer becomes bankrupt;
15.1.2 The Buyer announces that it has ceased to trade or intends to cease to trade;
15.1.3 The Buyer suspends payments of their debts or is unable to pay or admit or state their inability to pay their debts as they fall due;
15.1.4 The Buyer disposes or threatens to dispose of all or a material part of their assets whether by one or a series or transactions;
15.1.5 The Buyer convenes, calls or holds a meeting of their creditors or makes any arrangement, voluntary arrangement or composition with their creditors;
15.1.6 The Buyer’s directors make or state an intention to make or give notice of a proposal in relation to the Buyer for a voluntary arrangement under Part 1 of the Insolvency Act 1986;
15.1.7 A petition is presented for the Buyer’s winding-up or administration;
15.1.8 A resolution (other than for the sole purpose of and followed by reconstruction or amalgamation, approved by the Seller) is passed for the Buyer’s voluntary winding up;
15.1.9 The Buyer is dissolved;
15.1.10 The Buyer suffers the levy or enforcement of any execution, distress, sequestration, detention or other process on any property or premises.
15.2 The termination of this Agreement howsoever arising is without prejudice to the rights duties and liabilities of either party accrued prior to termination. The clauses in this Agreement which expressly or impliedly have effect after termination shall continue to be enforceable not withstanding termination.
16. SET OFF
The Buyer shall make no reduction from the amount payable under each invoice on account of any set-offs or claim or counter-claim unless both the validity and the amount thereof have been admitted by Acare in writing.
These conditions and the contract to which they relate are governed in all respects by English Law and the Buyer submits to jurisdiction of the English courts.
If any of the provisions of these conditions are held to be invalid for any reason then these conditions shall be read as if the invalid provisions had to that extent been deleted and the validity of the remaining provisions of these conditions shall not be affected.
19. BUYER’S CONDITIONS
In all instances the conditions stated herein override any separate terms and conditions stated by the Buyer.
20. THIRD PARTY RIGHTS
No person or party is to gain any right or benefit whatsoever under the terms of this contract save for Acare and the named buyer. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract.