ADA FASTFIX ACCOUNT TERMS & CONDITIONS
The Buyer's attention is drawn in particular to the provisions of Condition 12.
- 1. INTERPRETATION
1.1. Definitions. In these Conditions, the following definitions apply:
"ADA": ADA Fastfix Limited (registered in England & Wales with company number 04519982).
"Bespoke Goods": any Goods which are bespoke in nature and/or have been customised or personalised specifically for the Buyer.
"Buyer": the person or firm who purchases the Goods from ADA.
"Business Day": a day other than a Saturday, Sunday or public holiday in England, when banks in London, UK are open for business.
"Conditions": these terms and conditions as amended from time to time in accordance with Condition 15.4.
"Contract": the contract between ADA and the Buyer for the sale and purchase of Goods in accordance with these Conditions.
"Force Majeure Event": has the meaning given in Condition 13.
"Goods": the goods or any part of them set out in the Order.
"Order": the Buyer's order for the Goods, as set out in the Buyer's purchase order form, the Buyer's acceptance of ADA's quotation, or overleaf, as the case may be.
1.2. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.3. A reference to writing or written included email but excludes fax.
- 2. BASIS OF CONTRACT
2.1. All orders placed with ADA are subject to the Conditions set out below. No modifications or variations to these Conditions and no other Conditions shall be valid or effective unless expressly accepted in writing by a director of ADA.
2.2. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
2.4. The Order shall only be deemed to be accepted when ADA issues acceptance of the Order, at which point the Contract shall come into existence.
2.5. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.6. The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. The Buyer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
2.7. Any descriptions or illustrations contained in ADA's catalogues, brochures or on ADA’s website and any samples are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.8. A quotation for the Goods given by ADA shall not constitute an offer. A quotation shall only be valid for period of 20 days from its date of issue.
2.9. The Buyer may amend or cancel an Order (except in relation to any Bespoke Goods, for which the Order shall be non-amendable and non-cancellable) by written notice to ADA, at any time before the Order is despatched. If the Buyer amends or cancels an Order, its liability to ADA shall be limited to payment to ADA of all costs reasonably incurred by the ADA in fulfilling the Order up until the date of deemed receipt of the amendment or cancellation.
- 3. GOODS
3.1. The Goods are described in ADA's catalogue.
3.2. ADA reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
- 4. BESPOKE GOODS
4.1. The Bespoke Goods shall correspond in all material respects with any written specification for them expressly set out, or referred to, in ADA’s Order acceptance.
4.2. Any Order for Bespoke Goods may not be amended nor cancelled, so far as it relates to such Bespoke Goods.
4.3. The Buyer may request delivery of Bespoke Goods in instalments. ADA shall store any Bespoke Goods, at no cost to the Buyer, for a maximum period of 12 months after the date of Order. After 12 months, if the Buyer has not requested delivery of any remaining Bespoke Goods, ADA shall be entitled to resell, donate to charity or otherwise dispose of any remaining Bespoke Goods without any further obligation or liability to the Buyer.
4.4. The Buyer shall indemnify ADA against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by ADA in connection with any claim made against ADA for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with ADA use of any drawing, specification or other materials supplied by the Buyer. This Condition 4.4 shall survive termination of the Contract.
- 5. RETURN AND REFUND
5.1. The Buyer may cancel the Contract and receive a refund if the Buyer notifies ADA as set out in Condition 5.2 within 14 days of delivery.
5.2. This cancellation right does not apply in the case of any Bespoke Goods or any Goods which become mixed inseparably with other items after their delivery.
5.3. There will be a 15% restocking charge deducted from the refund. There may also be carrier charges which are deducted from the refund, which we will confirm as part of cancellation process.
5.4. To cancel the Contract, you must contact our Customer Services team by email at w.orders@adafastfix.co.uk.
5.5. If Goods have been delivered to you before you decide to cancel the Contract, then you must return them to us without undue delay and in any event not later than 14 days after the day on which you let us know that you wish to cancel the Contract. Please see our Returns page (Returns Policy - ADA Fastfix Ltd) for more information on how to arrange a return.
- 6. PRICE
6.1. The price of the Goods shall be ADA's list price of the Goods prevailing at the date of acceptance of the Order by ADA (less any agreed discount).
6.2. The price of the Bespoke Goods shall be the price provided by ADA to the Buyer.
6.3. Unless otherwise stated all prices are exclusive of V.A.T. The Buyer shall, on receipt of a valid invoice from ADA, pay to ADA such additional amounts in respect to of VAT as are chargeable for the supply of the Goods.
6.4. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
6.5. ADA shall be entitled from time to time to vary list prices without prior notice.
- 7. PAYMENT
7.1. Unless otherwise specified in writing by ADA, the Buyer shall pay the invoice in full and cleared funds by the end of the month following the month the invoice was dated. Time of payment is of the essence.
7.2. In respect of Bespoke Goods, ADA shall invoice the Buyer on delivery of each instalment.
7.3. If there are any Bespoke Goods which have not been requested for delivery at the end of the 12 month period referred in Condition 4.3 and not invoiced, or any Bespoke Goods that the Buyer informs ADA it no longer requires, ADA shall be entitled to invoice for the remaining amount, in full.
7.4. If the Buyer fails to make any payment due to ADA under the Contract by the date for payment (due date):
7.4.1. ADA may cancel the balance (if any) of the Contract under which the Buyer has failed to pay for the Goods and recover from the Buyer damages for any loss suffered by ADA as a result of such cancellation;
7.4.2. ADA may cancel any other contract or the balance of any other contract which ADA may have with the Buyer and recover from the Buyer damages for any loss suffered by ADA as a result of such cancellation;
7.4.3. the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base lending rate from time to time. Such interest shall accrue on a daily basis from the due date to the date of actual payment of the overdue amount, whether before or after judgement. The Buyer shall pay the interest together with the overdue amount.
7.5. The Buyer shall pay all amounts due under the Contract in full without any deduction of withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against ADA in order to justify withholding payment of any such amount in whole or in part. ADA may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by ADA to the Buyer.
- 8. BUYER'S INSOLVENCY
8.1. If the Buyer becomes subject to any of the events listed in Condition 8.2 or ADA reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, then, without limiting any other right or remedy available to ADA, ADA may cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and ADA without incurring any liability to the Buyer, and all outstanding sums in respect of Goods delivered to the Buyer shall become immediately due.
8.2. For the purposes of Condition 8.1 the relevant events are where the Buyer suspends or threatens to stop or suspend payment of all or a material part of its debts, is unable to pay its debts as they fall due, goes into liquidation (except for the purpose of re-construction or amalgamation), has a receiver, administrator or administrative receiver, or examiner appointed over any of its assets or makes any voluntary arrangement with its creditors generally.
8.3. Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
- 9. ACCOUNTS
9.1. The Buyer acknowledges and agrees that details of the Buyer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of ADA in connection with the Contract.
9.2. ADA reserves the right to close a credit account at any time without prior notice whereupon the whole of the amount outstanding on such account shall become immediately due and payable.
9.3. The Buyer acknowledges and agrees that ADA may contact any party whose details the Buyer provides to ADA for the purpose of obtaining a reference.
10. COLLECTION AND DELIVERY
10.1.ADA shall ensure that each delivery of the Goods is accompanied by a delivery note which shows all relevant reference numbers of ADA and the Buyer, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
10.2.ADA shall deliver the Goods to the location set out in the Order or such other location as the parties agree (Delivery Location) at any time after ADA notifies the Buyer that the Goods are ready.
10.3.Subject to Condition 4.3, delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
10.4.If ADA fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
10.5.If the Buyer fails to accept delivery of the Goods within three days of ADA notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Buyer's failure to comply with its obligations under the Contract:
10.5.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which ADA notified the Buyer that the Goods were ready; and
10.5.2. ADA shall store the Goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).
10.6.If 14 days after the day on which ADA notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, ADA may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
10.7.If the Delivery Location is not ADA's premises the Buyer will ensure that at the Delivery Location there is adequate access, adequate labour and other facilities in order to enable the Goods to be unloaded promptly and safely and the Buyer will indemnify ADA in respect of any losses costs and expenses incurred by ADA as a consequence of the Buyer's failure to comply with this Condition 10.7.
10.8.ADA may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
10.9.Any dates quoted for delivery are approximate only, and the time for delivery is not of the essence. ADA shall not be liable for any delay in delivery of the goods that is caused by a Force Majeure Event or the Buyer's failure to provide ADA with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
10.10. If ADA delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, ADA shall make a pro rata adjustment to the invoice for the Goods.
10.11. ADA shall be entitled to withhold delivery to the Buyer of any Goods where at the time of delivery payment is due to ADA in respect of any Goods supplied to the Buyer under any contract whatsoever.
10.12. The Buyer shall, if agreed with ADA, return original equipment manufacturer packaging for credit. Returns of packaging materials shall be at the Buyer’s expense.
11. DEFECTIVE GOODS
11.1.ADA warrants that on delivery the Goods shall:
11.1.1. conform in all material respects with their description;
11.1.2. be free from material defects in design, material and workmanship; and
11.1.3. be of satisfactory quality (within the meaning of the Sale and Goods Act 1979).
11.2.Subject to Condition 11.3 ADA shall, at its option, repair or replace any defective Goods, or refund the price of the defective Goods in full, if:
11.2.1. the Buyer gives notification that some or all of the Goods do not comply with the warranty set out in Condition 11.1 with full particulars thereof to ADA in writing within 10 days of the date of delivery of the Goods; and
11.2.2. ADA is given reasonable opportunity of examining such Goods; and
11.2.3. the Buyer (if so required by ADA) returns such Goods to ADA's place of business at the Buyer's cost.
11.3.ADA shall not be liable for the Good's failure to comply with the warranty set out in Condition 11.1 if:
11.3.1. the Buyer makes any further use of such Goods after giving notice in accordance with Condition 11.2;
11.3.2. the defect arises because the Buyer failed to follow ADA's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
11.3.3. the Buyer alters or repairs such Goods without the written consent of ADA;
11.3.4. any defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
11.3.5. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
11.4.Except as provided in this Condition 11 ADA shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in Condition 11.1.
11.5.Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.6.These Conditions shall apply to any repaired or replacement Goods supplied by ADA.
12. LIMITATION OF LIABILITY
12.1.References to liability in this Condition 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2.Nothing in these Conditions shall limit or exclude ADA's liability for:
12.2.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
12.2.2. fraud or fraudulent misrepresentation;
12.2.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
12.2.4. any matter in respect of which it would be unlawful for ADA to exclude or restrict liability.
12.3.Subject to Condition 11.1:
12.3.1. ADA shall not be liable to the Buyer for any loss of profit, loss of sales or business, loss of business contracts, loss of revenues or anticipated savings, loss of or damage to goodwill or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by ADA, its employees, agents or subcontractors); and
12.3.2. ADA's total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by ADA, its employees, agents or subcontractors shall not exceed the price of the Goods.
12.4.This Condition 12 shall survive termination of the Contract.
- 13. FORCE MAJEURE
13.1.Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
14. PROPERTY AND RISK
14.1.The risk in the Goods shall pass to the Buyer on completion of delivery.
14.2.Title to the Goods shall not pass to the Buyer until ADA has received payment in full (in cash or cleared sums) for:
14.2.1. the Goods; and
14.2.2. any other goods or services that ADA has supplied to the Buyer in respect of which payment has become due.
14.3.13.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
14.3.1. hold the Goods on a fiduciary basis as ADA's bailee;
14.3.2. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as ADA's property;
14.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
14.3.4. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
14.3.5. notify ADA immediately if it becomes subject to any of the events listed in Condition 8.2; and
14.3.6. give ADA such information relating to the Goods as ADA may require from time to time, but the Buyer may resell or use the Goods in the ordinary course of its business.
14.4.If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in Condition 8.2 or ADA reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy ADA may have, ADA may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
15. GENERAL
15.1.Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first class or recorded delivery post for notices sent domestically in the UK, commercial courier or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this condition; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission. The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.
15.2.Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of England and Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
15.3.A person who is not party to the Contract shall not have any rights under or in connection with it.
15.4.Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by ADA.
15.5.Assignment. ADA may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of ADA.
15.6.Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.7.Waiver. Except as set out in Condition 2.5, a waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
