1.1 Any contract (“Contract”) between Arkoss Limited and any person(s), firm or company (“Customer”) for the sale and purchase of any products which Arkoss Limited supplies to the Customer (including any of them or any part of them) (“Products”) will be upon these Terms and Conditions to the exclusion of all other terms and conditions and all previous oral or written representations, including without limitation any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
1.2 Each order, request to buy or acceptance of a quotation for Products by the Customer will be deemed to be an offer by the Customer to purchase Products upon these Terms and Conditions. The Contract is formed when the Customer’s offer to purchase is accepted by Arkoss Limited, as evidenced by a valid sales receipt or other written acceptance of the Customer’s offer. No contract will come into existence until a valid sales receipt or written acceptance of order is issued by Arkoss Limited. In any event, acceptance of delivery of the Products will be deemed conclusive evidence of the Customer’s acceptance of these Terms and Conditions.
1.3 The Customer must ensure that the published specifications of the Products intended for purchase meet its requirements.
2. THE PRODUCTS
2.1 The description and specification of the Products will be as set out in the descriptive matter on the manufacturer’s packaging or label affixed to or associated with the Product.
2.2 All samples, drawings, descriptive matter, specifications and advertising issued by Arkoss Limited. (or the manufacturer of the Products) and any descriptions or illustrations contained in Arkoss Limited’s or manufacturer’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
2.3 Arkoss Limited (or the manufacturer of the Product) may make any changes to the specification, design, materials or finishes of the Products which are required to conform with any applicable safety or other statutory or regulatory requirements or do not materially affect their quality.
3. PRICE AND PAYMENT
3.1 The price for the Products will be the price displayed for sale in our stores, catalogue or website as applicable (provided that Arkoss Limited shall be entitled to vary such price at any time prior to acceptance of the Customer’s offer to purchase) and is exclusive of any costs of packaging and delivery of the Products (where applicable) and any value added tax or other applicable sales tax or duty which will be added to the sum in question.
3.2 Except where Arkoss Limited has agreed credit account terms with the Customer in writing in advance, the price of the Product shall payable in full by the Customer at the point of sale with the Customer’s offer to Arkoss Limited to purchase the Products. Where credit account terms have previously been agreed, Arkoss Limited may invoice the Customer for the Products on, or at any time after, acceptance by Arkoss Limited of the Customer’s offer to purchase the Products, and payment is due in pounds sterling 30 days after date of such invoice, provided that all sums payable to Arkoss Limited under the Contract will become due immediately upon termination of the Contract. Time for payment will be of the essence.
3.3 Except where the Customer is purchasing Products otherwise than in the course of a business (“Consumer”), all payments to be made by the Customer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Customer is required by law to make any such deduction or withholding.
3.4 Arkoss Limited may appropriate any payment made by the Customer to Arkoss Limited to such of the invoices for the Products as Arkoss Limited thinks fit, despite any purported appropriation by the Customer.
4.1 Unless agreed otherwise by Arkoss Limited in writing, the Customer will take delivery of the Products at the point of sale, or collection point within Arkoss Limited’s store.
4.2 Where Arkoss Limited has agreed in writing to deliver the Products to the location requested by the Customer, Arkoss Limited will use reasonable endeavours to deliver each of the Products within any time agreed with the Customer and, if no time is agreed, then within a reasonable time, but the time of delivery will not be of the essence. If, despite those endeavours, Arkoss Limited is unable for any reason to fulfil any delivery on the specified date or within a reasonable time, then Arkoss Limited will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will Arkoss Limited have any liability to the Customer for any loss howsoever caused (including as a result of negligence). Any delay in delivery will not entitle the Customer to cancel the Contract unless and until the Customer has given 14 days’ written notice to Arkoss Limited requiring delivery to be made and Arkoss Limited has not fulfilled delivery within that period.
4.3 The Customer will provide at its expense at the adequate and appropriate equipment and manual labour for off-loading the Products.
4.4 If the Customer fails to take delivery of any of the Products when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the Products to be delivered, the Products will be deemed to have been delivered on the due date and (without prejudice to its other rights) Arkoss Limited may store or arrange for storage of the Products until actual delivery and charge the Customer for all related costs and expenses (including, without limitation, storage and insurance).
4.5 Arkoss Limited may deliver the Products by separate instalments Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract. Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Customer to repudiate or cancel any other Contract or instalment.
5. RISK / OWNERSHIP
5.1 Risk of damage to or loss of the Products will pass to the Customer on sale or where Arkoss Limited has agreed to deliver the Products, on delivery (or deemed delivery in accordance with Condition 4.4).
5.2 Ownership of the Products will not pass to the Customer until Arkoss Limited has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to Arkoss Limited from the Customer on any account.
5.3 Until ownership of the Products has passed to the Customer, the Customer must:
5.3.1 hold the Products on a fiduciary basis as Arkoss Limited’s bailee;
5.3.2 store the Products (at no cost to Arkoss Limited) separately from all other Products of the Customer or any third party in such a way that they remain readily identifiable as Arkoss Limited’s property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
5.3.4 maintain the Products in satisfactory condition insured on the Arkoss Limited’s behalf for their full price against all risks to the reasonable satisfaction of Arkoss Limited, and will whenever requested by Arkoss Limited produce a copy of the policy of insurance.
5.4 The Customer’s right to possession of the Products will terminate immediately if any of the circumstances set out in Condition 8.1 occur.
5.5 Arkoss Limited will be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from Arkoss Limited.
5.6 The Customer grants Arkoss Limited, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
5.7 Where Arkoss Limited is unable to determine whether any Products are the Products in respect of which the Customer’s right to possession has terminated, the Customer will be deemed to have sold all Products of the kind sold by Arkoss Limited to the Customer in the order in which they were invoiced to the Customer.
5.8 On termination of the Contract, howsoever caused, Arkoss Limited’s rights contained in this Condition 5 will remain in effect.
6. WARRANTY AND EXCLUSION OF LIABILITY THIS CONDITION 6 SHALL NOT APPLY WHERE THE CUSTOMER IS A CONSUMER, IN WHICH CASE CONDITION 7 SHALL APPLY INSTEAD.
6.1 Arkoss Limited is not the manufacturer of the Products and provides no warranty in relation to the Products,
6.1.1 where a Product is sold with the benefit of a manufacturer’s warranty, Arkoss Limited will use its reasonable endeavours to pass on the benefit of this warranty to any Customer who proves that they have purchased a Product which is damaged or defective; or
6.1.2 where a refurbished, re-conditioned or second-hand Product is sold, Arkoss Limited will, free of charge, within a period of 3 months from date of purchase of the Products repair, or at its option replace, such Products which are proved to be damaged or defective.
6.2 The obligations contained in Condition 6.1 will not apply where:
6.2.1 the Products have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
6.2.2 the Products have been improperly installed or connected;
6.2.3 any maintenance requirements relating to the Products have not been complied with;
6.2.4 any instructions as to storage or use of the Products have not been complied with in all respects; or
6.2.5 the Customer has failed to notify Arkoss Limited of any defect or suspected defect within 7 days of its receipt of the Product where the defect should be apparent on reasonable inspection, or within 7 days of the same coming to the knowledge of the Customer where the defect is not one which should be apparent on reasonable inspection.
6.3 Any Products which have been replaced will belong to Arkoss Limited. Any repaired or replacement Products will be liable to repair or replacement under the terms specified in Condition 6.1 for the unexpired portion of the relevant warranty period.
6.4 Arkoss Limited does not exclude its liability (if any) to the Customer for any matter which it would be unlawful for it to exclude or to attempt to exclude its liability.
6.5 Except as provided in Conditions 4.2 and 6.1 to 6.4, Arkoss Limited will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with;
6.5.1 any of the Products, or the sale of the Products by Arkoss Limited, any breach by Arkoss Limited of any terms of the Contract, any use made or resale by the Customer of any of the Products or any statement made or not made, or advice given or not given, by or on behalf of Arkoss Limited; or
6.5.2 otherwise under the Contract.
6.6 Except as set out in Conditions 4.2 and 6.1 to 6.4, Arkoss Limited hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
7. DEFECTIVE GOODS WHERE THE CUSTOMER IS A CONSUMER THIS CONDITION 7 APPLIES ONLY WHERE THE CUSTOMER IS A CONSUMER. IT IS IN ADDITION TO THE CUSTOMER’S OTHER RIGHTS RELATING TO DEFECTIVE PRODUCTS GIVEN BY LAW AND DOES NOT AFFECT A CONSUMER’S STATUTORY RIGHTS.
7.1 Arkoss Limited will, free of charge, within a period of 12 months (3 months for refurbished, re-conditioned or second-hand Product) from the date of purchase of Products which are proved to be damaged or defective or not comply with the agreed specification due to defects in material, workmanship or design, repair, or at Arkoss Limited’s option replace, such Products. This obligation will not apply where:
7.1.1 the Customer has improperly altered the Products in any way whatsoever, or has subjected them to misuse or unauthorised repair;
7.1.2 the Products have been improperly installed or connected (other than by Arkoss Limited);
7.1.3 the Customer has not complied with any maintenance requirements;
7.1.4 the Customer has not complied with any instructions as to storage or use of the Products in all respects; or
7.1.5 the Customer has failed to notify Arkoss Limited of any problem or suspected problem within 14 days of its receipt of the Product where the problem should be apparent on reasonable inspection, or within 14 days of the Customer becoming aware where the problem is not one which should be apparent on reasonable inspection.
7.2 Arkoss Limited will refund to the Customer the cost of carriage on the return of any such defective or damaged Products, and will deliver any repaired or replacement Products to the Customer at its expense.
7.3 Any Products which have been replaced will belong to Arkoss Limited. Any repaired or replacement Products will be liable to repair or replacement or refund under the terms specified in Condition 7.1 for the unexpired portion of the relevant warranty period.
7.4 In addition where a Product is sold with the benefit of a manufacturer’s warranty, Arkoss Limited will use its reasonable endeavours to pass on the benefit of this warranty to any Customer who proves that they have purchased a Product which is damaged or defective.
8.1 Arkoss Limited may by notice in writing served on the Customer terminate the Contract immediately if the Customer:
8.1.1 is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Customer fails to remedy such breach within seven days service of a written notice from Arkoss Limited. Failure to pay any sums due in accordance with Condition 3.2 is a material breach of the terms of the Contract which is not capable of remedy.
8.1.2 becomes bankrupt, insolvent, has a receiver or administrator appointed in respect of it, is the subject of a winding-up petition or passes a resolution for its winding-up, makes any composition with his creditors, has a receiver appointed under the Mental Health Act 1983 or dies;
8.1.3 has any distraint, execution or other process levied or enforced on any of its property; or
8.1.4 ceases to trade.
8.2 The termination of the Contact howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination and will continue to be enforceable notwithstanding termination.
8.3 Arkoss Limited will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under Condition
8.1.1, until either the breach is remedied or the Contract terminates, whichever occurs first.
9.1 Each right or remedy of under any Contract is without prejudice to any other right or remedy under this or any other Contract.
9.2 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
9.3 No failure or delay by either party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
9.4 The Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without Arkoss Limited’s prior written consent.
9.5 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
9.6 Arkoss Limited will not be in breach of the Contract or otherwise liable to the Customer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to any cause preventing Arkoss Limited from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of Arkoss Limited.
9.7 The Contract will be governed by and construed in accordance with English Law. The English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.