Safe & Secure - Terms & Conditions
ACKW Ltd TA SAS (Safe & Secure)
ACKW Ltd TA SAS (Safe & Secure)
ACKW House, Unit 3 East Street, Leek
Staffordshire Moorlands. ST13 6LF
Registered in England No.5766170
1.1. “The Company” means Ackw Ltd.
1.2. “The Customer” means the Customer to whom the goods are sold or the services supplied or both.
1.3. “Goods” means:-
1. The goods supplied by the Company i.e. the customer either under a contract for the sale of goods alone or as part of a contract for the sale of goods and supply of services and/or
2. The water system installation parts and products supplied by the company to the customer.
1.4. “Services” means
1. The monitoring and sampling of water and/or
2. The provision of water treatment specifications, and advice and/or
3. The servicing of mechanical equipment and/or
4. The provision of pre-commission sterilisation and/or cleaning services, and/or
5. Remedial and maintenance cleaning services provided for in any contract entered into between the Company and the Customer to which these Conditions of Sale and Supply apply.
2.1. These Terms of Sale and Supply form the whole agreement between the Company and the Customer and shall not be removed or varied in any way. No other express terms, written or oral, shall be incorporated into the contract.
2.2. The company’s salesmen are not authorised to do any of the following things on behalf of the Company:
1. Remove or vary any of these terms or introduce any other terms, written or oral, into the contract.
2. Make any representation, agree any condition precedent or enter into any collateral contract.
3. Accept any offer or counter-offer made by the customer.
4. Make promises of any kind described in clause 2.3. below.
2.3. Where the Company has entered into a contract with the Customer for provision of services involving the Company attending the Customer’s premises on an agreed number of occasions for the purpose of undertaking regular water treatment and/or water testing services, and/or regular maintenance services, or where the Company agrees with the Customer to undertake regular laboratory analysis services, the specific terms endorsed on the face of that contract which shall be signed by the Company and the Customer, shall apply to that contract in any case in which those terms are inconsistent with these.
2.4. No variation or promise not to enforce the Company’s strict obligations under this contract shall be effective unless it is in writing and signed by a Director of the Company.
3.1. Any quotation which comprises an invitation to treat, given by the Company, is open for a period of sixty days only commencing with the date hereof, provided that the Company has not previously withdrawn it.
3.2. Any offer made by the customer is subject to acceptance by the Company and a contract will only be formed when the Company has accepted the Customer’s offer in writing.
3.3. Any offer made by the customer orally must be confirmed in writing.
4. Drawings etc.
4.1. All specifications, drawings, descriptions or illustrations of goods contained in the Company’s catalogues, price lists and other advertising matter are intended only to present a general impression of the goods and services described therein and none of these shall form part of the contract between the Company and the Customer.
4.2. Where the Company provides the Customer with an installation drawing and/or installation specification, whether before or after the Company’s acceptance of the Customer’s offer, the said installation drawing and/or installation specification shall remain the Company’s property and the Customer:-
1. shall treat the said installation drawing and/or installation specification confidentially, and
2. shall not copy or disclose the said installation drawing and/or installation specification to any person (other than the Customer’s employees in the normal course of the customer’s business) firm or corporation, and
3. shall return the said installation drawing and/or installation specification to the Company on demand.
5.1. The Customer is not permitted to cancel the contract within the Company except with the written consent of a Director of the company.
5.2. Where there is an agreed cancellation as permitted by clause 5.1. above, the Customer shall pay to the company a percentage of up to 25% of the contract price representing liquidated damages to compensate the Company against all losses incurred as a result of the compensation (including up to 25% restocking fee).
6. Price and Payment
6.1. Where goods and/or services are supplied by the Company by reference to the Company’s price lists, the price payable by the Customer is the price ruling at the date of delivery.
6.2. Unless otherwise stated, all prices quoted are exclusive of VAT and delivery charges.
Where it becomes apparent, after a contract has been entered into between the Company and the Customer, that the Customer has provided the Company with insufficient or incomplete information to enable the Company to perform the contract the Customer
1. Shall provide such further information as the Company requests to enable the Company to perform the contract within 14 days of receipt of a written request from the Company so to do, and
2. Shall pay the additional costs reasonably incurred by the Company by reason of the Customer’s default.
6.3.2. If the customer fails to provide such further information as the Company requests in accordance with paragraphs 126.96.36.199. the company may terminate the contract without prejudice to all other rights and remedies available to the Company.
6.4. If the customer fails to return to the Company’s head office premises any sample or samples supplied by the Company to the Customer within one calendar month after the date of despatch of the said samples to the Customer, the Customer shall pay for the said sample or samples at the price ruling at the expiry of the said calendar month.
1. The contract price includes and/or commissioning, and
2. the time for installation and/or commissioning extends beyond six months from date of delivery or that provided for in the contract, whichever is sooner, by reason of conditions on site outside the Company’s control, the customer shall pay any costs thereby incurred by the Company in addition to the contract price.
6.6. Where the contract provides for installation and commissioning the Company reserves the right to require payment of the price in three equal instalments at the dates of order, delivery and commissioning respectively. If the Customer defaults in payment of any one instalment the Company may terminate the contract without prejudice to
1. the Company’s rights against the Customer in respect of any liability already incurred by the Customer under the contract, and
2. the Company’s rights and remedies in respect of any loss or damage suffered by the Company by reason of the Customer’s default.
6.7. Subject to clause 6.6 above, payment of the price is due,
1. where pro forma terms are quoted by the Company, on the date of the pro forma invoice or
2. in all other cases, nett 30 days from the date of the invoice.
6.8. The company reserves the right to charge interest on all overdue invoices at 1.5 per cent per month. Interest is deemed to accrue on a day to day basis from and including the date for payment under clause 6.6 and 6.7.
7. Suspension of Work
7.1. If the Company has to suspend work
1. either on the Customer’s instructions without good cause,
2. or because the Customer has failed to give instructions in response to the written request of the Company for a period of thirty days from the date of the written request the Company
3. may at its sole discretion deem the contract to have been repudiated by the Customer by servicing notice in writing to this effect on the Customer, and
4. shall be entitled to recover any loss and damage occasioned by such suspension of work from the customer.
8. Delivery and Storage
8.1. Delivery is deemed to occur on the date when the goods are delivered to the Customer’s premises.
8.2.1 Delivery dates for goods or dates for performance of services mentioned by the Company in any quotations, order or other document are approximate only and are deemed to take effect from and including the date on which the Company receives a written offer to purchase from the Customer which the Company accepts in writing, or, if later, the date on which the Company receives from the Customer all the necessary information and drawings to enable the Company to carry out the contract and time for delivery shall not be of the essence of the contract.
8.2.2. Late performance of the contract does not entitle the buyer to do of the following:-
1. reject the goods
2. terminate the contract
3. withhold payment of any part of the contract price.
8.3.1 Where the goods comprise water system parts and do not form part of a contract which includes the provision of services the Customer shall carefully examine the goods immediately on receipt and before use of them to ensure that they correspond with their description and specification and shall notify the company in writing of any short delivery or any defect reasonably discoverable on careful examination.
8.3.2. Such notification must be made in writing and received by the Company within 7 days commencing with the day of the Customer’s receipt of the said goods.
8.3.3. The Customer shall preserve intact the said goods the subject of a claim under clause 8.3.1. hereof for a period of 14 days to afford the Company by its servants or agents an opportunity to inspect the said goods.
8.3.4. Where the Customer complies with clauses 8.3.1. and 8.3.3. hereof and the Company in its absolute discretion accepts the claim the Company will credit the said goods or replace them.
8.3.5. Where the Customer fails to comply with clauses 8.3.1. 8.3.2 and 8.3.3 hereof the Company shall not be liable for any claim for short delivery or defective goods.
1 goods are to be supplied by the Company to the Customer, and
2. the Company serves notice in writing on the Customer that such goods are ready for delivery, and
3. the Customer fails, within fourteen days after service of such written notice, to confirm its readiness to take delivery of the goods and to notify the Company of the delivery arrangements.
delivery shall be deemed to have taken place on the expiry of the said fourteen days and the Company
4. shall arrange storage of the Customer’s goods at the Customer’s risk and the Company shall not be held liable for any loss or damage to the goods howsoever arising, from and including the expiry of the said fourteen days and
5. if the goods are stored on the Company’s premises, the Company shall charge five per cent of the contract price of the goods per week for storage, such charge to be paid by the Customer monthly in arrears.
6. where the Company serves notice in accordance with clause 8.4..1.2. above, and the Customer fails to confirm its readiness to take delivery and the delivery arrangements within three calendar months after the expiry of the fourteen days referred to in clause 188.8.131.52. above, the Company may treat the Customer as having repudiated the contract.
9. Risk and Property
9.1. Where the company supplies goods to the Customer, either under a contract for the supply of goods only, or as part of a contract for the supply of installation and/or commissioning services, the goods shall be the risk of the Customer from and including the date of delivery.
9.2. Notwithstanding risk in the goods passing in accordance with clause 9.1. hereof, title in the goods shall not pass to the Customer until payment in full is received by the Company for the goods and no other amounts are outstanding from the Customer to the Company in respect of other goods or services supplied by the Company to the Customer.
9.3.1. Before title passes to the Customer under the terms of clause 9.3. hereof, and without prejudice to any of its other rights, the Company has the right to recover or resell the goods or any of them and may enter upon the Customer’s premises by its servants or agents for that purpose.
9.3.2. Where the Company incurs any cost in recovering or selling the goods, it may recover the said cost from the Customer as a debt.
9.4. If the Customer alters the goods by subjecting them to any manufacturing process or incorporating them into another produce or mixing them in any way, the resulting product (“the altered goods”) will pass into the ownership of the Company until payment due under all contracts between the Company and the Customer has been made in full and all the Company’s rights hereunder shall extend to the altered goods.
9.5. Until payment due under all contracts between the Company and the Customer has been made in full the Customer shall hold the goods and altered goods on trust for the Company.
9.6. As the insurable risk in the goods passes to the Customer as soon as the goods are delivered to him or to his order the Customer shall keep the goods insured against all insurable risks in the amount of the price at which the goods are sold to the Customer.
9.7. If goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.
9.8. If the Customer becomes insolvent these Terms of Sale and Supply shall operate as an assignment by the Customer to the Company of the benefit of any insurance claim.
10. Force Majeurs
10.1 The company accepts no liability for any failure to deliver goods or carry out services arising from circumstances outside the Company’s control.
10.2 Non exhaustive illustrations of these circumstances are Act of God, war, riots, explosions, abnormal weather conditions, earthquake, fire, floods, strikes, lockouts, Government action or regulations (UK or otherwise) delay by suppliers and shortage of materials, labour or manufacturing facilities.
10.3 If the Company is prevented from delivering or carrying out services in the above circumstances, it shall notify the Customer of the fact in writing within 10 days commencing with the contractual delivery date.
10.4 If the circumstances preventing delivery are still continuing after three months from and including the date the Company sends such notices, either party may give written notice to the other cancelling the contract. Such written notice must be received while the circumstances are still continuing.
10.5 If the contract is cancelled in this way, the Company shall refund any payment which the Customer has already made on account of the price (subject to deduction of any amount properly due to or which the company is entitled to claim from the Customer) but the Company accepts no liability to compensate the Customer for any further loss or damage caused by the failure to deliver or failure to carry out services.
11. Breach of agreement
11.1 If the customer,
1. being a Company,
1. has a petition presented for its winding-up, or,
2. passes a resolution for voluntary winding up (other than for the purpose of a bona fide amalgamation or reconstruction) or
3. compounds with its creditors, or
4. has a receiver appointed of all or any of its assets; or
2. being an individual,
1. becomes bankrupt or insolvent, or,
2. enters into any arrangements with its creditors, or,
3. in either case, commits a breach of this contract or if any distress or execution shall be levied upon the Customer’s property or assets, the Company may terminate the contract.
Where the Company supplies water system or other equipment and the contract provides for the Company to carry out a test or tests, in the presence of the Customer’s services or agents, the Company shall give the Customer seven days notice in writing of its readiness to conduct the test or tests. If the customer fails to attend the test or tests after receipt of such notice, the test or tests will be carried out in the absence of the Customer and shall be deemed to have been carried out in his presence and to his satisfaction.
13.1 Where commissioning attendance is included as part of a contract between the Company and the Customer for the supply of equipment,
1. the installation work must be complete and in accordance with the Company’s diagrams and installation drawings and
2. all services provided for by the contract specification must be connected and readily available before the Company attends to commission the equipment.
13.2 Where the Customer fails to comply with clauses 13.1.1 and 13.1.2 the Customer shall pay the additional costs incurred by the Company by reason of the Customer’s default.
14.1 Where the Company supplies goods to the Customer in accordance with a design or specification provided by the Customer the Company does not hold out or warrant that the goods will be fit for the purpose for which the Customer required them and accepts no liability for breach of contract or negligence arising out of the goods being unfit for the purpose for which they are required other than liability for negligence causing death or personal injury.
14.2 Where the company supplies goods to the Customer under clause 14.1 above, the Customer indemnifies the Company against all liability arising out of the Company’s breach of contract, negligence or infringement of letters Patent or Registered Design.
14.3.1 Where the Company supplies goods as part of a contract for the supply of goods and services to the Customer and where the Customer does not have the opportunity to examine the goods on delivery and before installation and use, and provided that the Customer has stored and used the goods properly and in accordance with instructions and procedures laid down by the Company in any brochure or other document where applicable, the Company will accept liability for loss, injury or damage caused by defects in the goods which arise during the period of 12 months after the installation of the goods, or during the period of 15 months after the delivery of the goods to the site, whichever is sooner, limited at the Company’s option either to the replacement or to the repair of the goods where the loss, injury or damage, is attributable to a defect in design, materials or workmanship but not further or otherwise.
14.3.2 The cost of replacement or repair or parts under clause 14.3.1 above shall be met by the Company unless the cause of replacement or repair is attributable to misuse, misapplication, excessive wear and tear, negligence of the Customer, failure of expendable compounds, outside contamination or frost damage.
14.4 The Company shall not be liable for any consequential or indirect loss suffered by the Customer whether this loss arises from breach of a duty in contract ? or in any other way (including loss arising from the Company’s negligence). Non-exhaustive illustrations of consequential or indirect loss would be
1. loss of profits
2. loss of contracts
3. damage to property of the Customer or anyone else and
4. personal injury to the Customer or anyone else (but only so far as such injury is not caused by the Company’s negligence).
14.5.1 Where the Company contracts with the Customer to carry out services of the kind described in condition 14.4.4 above, it is not possible for the Company to,
1 detect obstructions in the internal surfaces or courses of pipes and equipment, or
2. remove swarf or excessive quantities of jointing compounds or oils accumulated in the internal surface or courses of pipes and equipment and the Company shall not be liable for any loss or damage in contract or ? arising out of any defect occasioned by the Company’s failure to perform the contract satisfactorily by reason of the existence of any or all of the circumstances referred to in clauses 184.108.40.206 and 2 above, except for liability for negligence causing personal injury or death.
14.5.2 When entering into a contract with the Company of the kind referred to in clause 14.5.1 above, the Customer acknowledges that it is not possible to detect or remove the substances referred to in clause 220.127.116.11 and 2 above and is aware that the Company relies on inter alia the terms herein contained as to exclusion of thereof upon the relevant rights, duties and liabilities which may otherwise arise by virtue of the Supply of Goods and Services Act 1982, the Customer agrees to contract on the terms herein including the terms as to exclusion of liability.
14.5.3 The Customer indemnifies the Company against all liability in negligence for loss or damage causing personal injury or death in the circumstances referred to in clause 14.5.1 above.
15. Consumer Protection
Where the Company incurs any liability, whether by Court proceedings or by a bona fide out of court settlement, as a result of a claim against the Company under Part 1 of the Consumer Protection Act 1987 in respect of an alleged defect in goods supplied by the Company to the Customer, the Customer shall indemnify the Company against that liability.
Any notices to be given hereunder by or to the Company shall be served by being sent by recorded delivery first class post or by the Company at the last known address of the Company or the Customer as the case may be.
16. Legal Construction
The construction of these Terms of Sale and Supply and of any contract of which they form part shall be according to the courts of England and Wales and only courts within the jurisdiction of England and Wales shall have jurisdiction to hear and determine and dispute relating thereto.