ABILJO EXCAVATOR SERVICES LIMITED
Terms and Conditions of Sale
1.1 The definitions and rules of interpretation in this condition apply in these Conditions.
a day other than a Saturday, Sunday or public holiday, when banks in London are open for business.
Abiljo Excavator Services Limited, registered in England and Wales with company number 01427164.
has the meaning given to it in clause 2.4.
these terms and conditions as amended from time to time in accordance with clause 2.2.
any sale contract between Abiljo and the Customer for the sale and purchase of the Goods and where applicable, the supply of the Services, incorporating these Conditions and any express term specified in the Contract.
the person, firm or company who purchases the Goods and/or Services from Abiljo.
Data Protection Legislation
the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) GDPR and any other directly applicable European Union regulation relating to privacy.
General Data Protection Regulation (EU 2016/679).
the excavator buckets and attachments and spare parts produced by Abiljo and where applicable, any Services agreed in the Contract to be supplied to the Customer by Abiljo (including any part or parts of them).
any specification for the Goods, including any plans and drawings provided by the Customer to Abiljo.
Force Majeure Event
has the meaning provided to it in condition 16.1.1.
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition], rights in designs, [rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
International Supply Contract
a contract as is described in Section 26(3) of the Unfair Contract Terms Act 1977.
the Customer’s order for the Supply of Goods and/or Services as set out in the Customer’s purchase order form, or the Customer’s written acceptance of Abiljo’s quotation, or overleaf, as the case may be.
the repair, refurbishment and conversion services of excavator buckets and attachments provided by Abiljo under the Contract together with any other services which Abiljo provides, or agrees to provide to the Customer, as set out in the Contract.
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 Condition headings do not affect the interpretation of these Conditions.
2 APPLICATION OF TERMS AND BASIS OF CONTRACT
2.1 Subject to any variation under condition 2.2 the Contract shall be on these Conditions to the exclusion of all other terms and conditions. No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, request for a quotation, tender documentation, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.2 These Conditions apply to all Abiljo's sales and any variation to these Conditions and any representations or recommendations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of Abiljo. The Customer acknowledges that it has not relied on any recommendation, statement, promise or representation made or given by or on behalf of Abiljo which is not set out in the Contract. Nothing in this condition shall exclude or limit Abiljo's liability for fraudulent misrepresentation.
2.3 Each Order placed by the Customer shall be deemed to be an offer by the Customer to buy Goods and/or Services subject to these conditions. The Customer shall ensure that the terms of its Orders are complete and accurate.
2.4 No Order placed by the Customer shall be deemed to be accepted by Abiljo until confirmation of its acceptance is issued by Abiljo or (if earlier) Abiljo delivers the Goods to the Customer, at which point and on which date the Contract shall come in to existence (Commencement Date).
2.5 Any quotation is given on the basis that no Contract shall come into existence except in accordance with condition 2.4. Any quotation is valid for a period of 14 days only from its date, provided that Abiljo has not previously withdrawn it.
2.6 Any samples, drawings, descriptive matter or advertising issued by Abiljo and any descriptions of the Goods or illustrations or descriptions of the Services contained in Abiljo’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3 DESCRIPTION AND SPECIFICATION
3.1 The quantity and description of the Goods shall be as set out in Abiljo's Contract.
3.2 The Customer assumes sole responsibility for the performance of the Goods, their proper installation and safe operation at the Customer’s premises.
3.3 If Goods are made to a Goods Specification, instruction or design supplied by the Customer or any third party on behalf of the Customer then:
3.3.1 the suitability and accuracy of that Goods Specification, instruction or design will be the Customer’s responsibility;
3.3.2 the Customer will indemnify Abiljo against any infringement or alleged infringement of any third party’s Intellectual Property Rights and any loss, damage or expense (including, without prejudice to the generality of the foregoing, any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, legal costs (calculated on a full indemnity basis)) suffered or incurred by Abiljo arising out of or in connection with any claim made against Abiljo for actual or alleged infringement of a third party’s Intellectual Property Rights, arising out of or in connection Abiljo’s use of the Goods Specification. This clause 3.3.2 shall survive termination of the Contract.
3.4 Abiljo reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Abiljo shall notify the Customer in any such event,
3.5 Abiljo shall supply the Services in accordance with the Contract in all material respects.
3.6 Abiljo shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
4.1 Unless otherwise agreed in writing by Abiljo in the Contract and except in respect of International Supply Contracts, Abiljo shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Abiljo notifies the Customer that the Goods are ready.
4.2 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. The Customer shall provide at its expense adequate and appropriate equipment and manual labour for unloading the Goods at the Delivery Location.
4.3 If the Contract is an International Supply Contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract save that in the event of any inconsistency between Incoterms and any express term detailed in the Contract the latter shall prevail. Unless stipulated to any other effect in the Contract delivery shall be ex-works Abiljo’s premises and all risk passing to the Customer upon delivery by Abiljo at Abiljo’s premises. All delivery, freight and insurance costs shall be for the sole account of the Customer.
4.4 Any dates specified by Abiljo for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be made within a reasonable time.
4.5 Subject to the other provisions of these conditions Abiljo shall not be liable for any 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 similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor shall any delay entitle the Customer to terminate or rescind the Contract.
4.6 If for any reason the Customer fails to accept delivery of any of the Goods within 2 Business Days following the day on which Abiljo notified the Customer that the Goods are ready, or Abiljo is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, then except where such failure or delay is callused by a Force Majeure Event:
4.6.1 risk in the Goods shall pass to the Customer on the second Business Day following the day on which Abiljo notified the Customer that the Goods were ready;
4.6.2 the Goods shall be deemed to have been delivered at 9.00am on the second Business Day following the day on which Abiljo notified the Customer that the Goods were ready ; and
4.6.3 Abiljo may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.7 If after a period of not less than 30 days from the date of the Abiljo’s notice that the Goods are ready for delivery and the Customer has failed to take delivery or Abiljo is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, Abiljo shall have the right to:
4.7.1 resell or otherwise dispose of the Goods (or any part of them) to a third party; and
4.7.2 recover from the Customer, in addition to the costs referred to in condition 4.6, the amount if any by which the disposal proceeds are less than the sale price under the Contract together with any expenses incurred by the Company in negotiating and completing the resale or disposal of the Goods.
4.8 If Abiljo’s performance of the Services or supply of Goods under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Abiljo shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
4.9 The Customer shall be liable to pay to Abiljo, on demand, all reasonable costs, charges or losses sustained or incurred by Abiljo (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Abiljo confirming such costs, charges and losses to the Customer in writing.
4.10 Abiljo may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in deliver or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The quantity of any consignment of Goods as recorded by Abiljo on despatch from Abiljo's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2 Abiljo shall not be liable for any non-delivery of Goods unless the Customer gives written notice to Abiljo of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of Abiljo for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods. Abiljo shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Abiljo with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods,
6.1 Save in the case of International Supply Contracts and subject to any express term in the Contract, the Goods are at the risk of the Customer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Customer until Abiljo has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to Abiljo from the Customer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as Abiljo's bailee;
6.3.2 store the Goods (at no cost to Abiljo) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Abiljo's property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them properly stored, protected and insured on Abiljo's behalf for their full price against all risks to the reasonable satisfaction of Abiljo. On request the Customer shall produce the policy of insurance to Abiljo.
6.4 The Customer's right to possession of the Goods shall terminate immediately if:
6.4.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.4.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Abiljo and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.4.3 the Customer encumbers or in any way charges any of the Goods.
6.5 Until ownership of the Goods has passed to the Customer (and provided the Goods (or any amount of them) are still in existence and identifiable) Abiljo shall be entitled at any time to require the Customer to deliver up the Goods (or any amount of them) to Abiljo and, if the Customer fails to do so forthwith, to enter upon the premises of the Customer or any third party where the Goods are stored and repossess the Goods.
6.6 Abiljo hereby authorises the Customer to use and/or sell the Goods in the ordinary course of the Customer’s business. If the Customer:
6.6.1 sells the Goods prior to paying the full price for them the Customer shall hold the proceeds of sale on trust for Abiljo. Abiljo shall be entitled to call upon the Customer to assign all claims that the Customer may have against any party which has purchased the Goods; or
6.6.2 uses the Goods such that they are mixed with or converted into other material, Abiljo shall be entitled to an interest in such converted material to the value of the price of the Goods.
6.7 Abiljo shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Abiljo.
6.8 The Customer grants Abiljo, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.
6.9 Where Abiljo is unable to determine whether any Goods are the goods in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by Abiljo to the Customer in the order in which they were invoiced to the Customer.
6.10 The Customer shall indemnify Abiljo in respect of all costs any expenses incurred by Abiljo enforcing any right granted to Abiljo pursuant to this condition 6 and any costs and expenses arising out of any judgement in favour of Abiljo in respect of any invoice which remains unpaid by the Customer.
6.11 On termination of the Contract, howsoever caused, Abiljo's (but not the Customer's) rights contained in this condition 6 shall remain in effect.
7 CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
7.1.1 ensure that the terms of the Order and any information it provides in the Goods Specification are complete and accurate;
7.1.2 co-operate with Abiljo in all matters relating to the Services;
7.1.3 provide Abiljo, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Abiljo to provide the Services;
7.1.4 provide Abiljo with such information and materials as Abiljo may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
7.1.5 prepare the Customer's premises for the supply of the Services;
7.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
7.1.7 comply with all applicable laws, including health and safety laws;
7.1.8 keep all materials, equipment, documents and other property of Abiljo (Materials) at the Customer's premises in safe custody at its own risk, maintain the Materials in good condition until returned to Abiljo, and not dispose of or use the Materials other than in accordance with Abiljo’s written instructions or authorisation; and
7.1.9 comply with any additional obligations as set out in the Contract.
7.2 If Abiljo’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
7.2.1 without limiting or affecting any other right or remedy available to it, Abiljo shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Abiljo’s performance of any of its obligations;
7.2.2 Abiljo shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Abiljo’s failure or delay to perform any of its obligations as set out in this condition 7.2; and
7.2.3 the Customer shall reimburse Abiljo on written demand for any costs or losses sustained or incurred by Abiljo arising directly or indirectly from the Customer Default.
8.1 Unless otherwise agreed by Abiljo in writing, the price for the Goods and/or Services shall be the price set out in the Contract.
8.2 The price for the Goods shall be exclusive of any value added tax (where applicable) and all other taxes, duties, levies and government charges payable in respect of the Goods at the rate or rates prevailing when the taxable or chargeable event occurs even if a relevant law or regulation imposes such tax, duty, levy or charge solely on Abiljo. The prices are exclusive of the costs of packaging, insurance and carriage of the Goods, which shall be paid by the Customer.
9.1 Subject to condition 9.4, payment of the price for the Goods shall be made by the Customer in accordance with the payment terms and currency specified in the Contract or if not specified, payment shall be due in pounds sterling within 30 days of the end of the month in which the Goods are delivered by Abiljo.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until Abiljo has received cleared funds.
9.4 All payments payable to Abiljo under the Contract shall become due immediately on its termination despite any other provision.
9.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Abiljo to the Customer. Abiljo may, without prejudice to any other rights it may have, set off any liability of the Customer to Abiljo against any liability of Abiljo to the Customer.
9.6 If the Customer fails to pay Abiljo any sum due pursuant to the Contract, the Customer shall be liable to pay interest to Abiljo on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of the National Westminster Bank PLC, accruing on a daily basis until payment is made, whether before or after any judgment. Abiljo reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.1 Abiljo warrants that (subject to the other provisions of these Conditions) on delivery, the Services shall be provided with reasonable skill and care and the Goods shall be free from material defects in design, material and workmanship for a period of six months from the date of delivery by Abiljo (Warranty Period).
10.2 Abiljo shall not be liable for a breach of the warranty in condition 10.1 unless:
10.2.1 the Customer gives written notice of the defect to Abiljo, and, if the defect is apparent upon inspection within 7 days of delivery and in the case of a latent defect, within 7 days of the defect becoming apparent within the Warranty Period; and
10.2.2 Abiljo is given a reasonable opportunity after receiving the notice of examining such Goods or the goods upon which the Services have been performed and the Customer (if asked to do so by Abiljo) returns them to Abiljo's place of business at Abiljo’s cost for the examination to take place there.
10.3 Abiljo shall not be liable for a breach of the warranty in condition 10.1 if:
10.3.1 the Customer fails to give notice of rejection in accordance with condition 10.2.1, or
10.3.2 the Customer makes any further use of such Goods or goods upon which the Services have been performed after giving such notice; or
10.3.3 the defect arises because the Customer failed to follow Abiljo's oral or written instructions as to the storage, installation, maintenance or use of the Goods or (if there are none) good trade practice; or
10.3.4 the defect arises as a result of Abiljo following any drawing, design or Goods Specification supplied by the Customer; or
10.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions or use in contravention of any user conditions or build specification; or
10.3.6 the Customer alters or repairs such Goods without the written consent of Abiljo; or
10.3.7 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
10.4 Subject to condition 10.2 and condition 10.3, if any of the Goods do not conform with the warranty in condition 10.1 Abiljo shall at its option repair or replace such Goods (or the defective part) or re-perform the defective Services or refund the price of such Goods at the pro rata Contract rate provided that, if Abiljo so requests, the Customer shall, at Abiljo's expense, return the Goods or the part of such Goods which is defective to Abiljo.
10.5 If Abiljo complies with condition 10.4 it shall have no further liability for a breach of the warranty in condition 10.1 in respect of such Goods.
11 INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Abiljo.
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 11.2 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
11.3 In this condition 11, Applicable Laws means (for so long as and to the extent that they apply to Abiljo) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
11.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Abiljo is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
11.5 Without prejudice to the generality of condition 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Abiljo for the duration and purposes of the Contract.
11.6 Without prejudice to the generality of condition 11.2, Abiljo shall, in relation to any Personal Data processed in connection with the performance by Abiljo of its obligations under the Contract:
11.6.1 process that Personal Data only on the written instructions of the Customer unless Abiljo is required by Applicable Laws to otherwise process that Personal Data. Where Abiljo is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Abiljo shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Abiljo from so notifying the Customer;
11.6.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
11.6.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
11.6.4 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.6.5 notify the Customer on becoming aware of a Personal Data breach;
11.6.6 at the written direction of the Customer and so far as it is technically possible to do so, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the Personal Data; and
11.6.7 maintain complete and accurate records and information to demonstrate its compliance with this condition 11.6.
11.7 The Customer acknowledges that the Abiljo is reliant on the Customer for direction as to the extent to which Abiljo is entitled to use and process the Personal Data. Consequently, Abiljo will not be liable for any claim brought by a data subject or any action of any regulator (including, for the avoidance of doubt any fine) arising from any action or omission by Abiljo to the extent that such action or omission resulted directly from the Customer’s instructions and the Customer shall indemnify Abiljo in full against any costs, claims, damages or expenses incurred by Abiljo as a result of any action by a data subject or regulator resulting from Abiljo following the instructions of the Customer.
12 LIMITATION OF LIABILITY
12.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of Abiljo (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
12.1.1 any breach of these conditions;
12.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods or of any goods upon which the Services have been performed; and
12.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these conditions excludes or limits the liability of Abiljo:
12.3.1 for death or personal injury caused by Abiljo's negligence; or
12.3.2 under section 2(3), Consumer Protection Act 1987; or
12.3.3 for any matter which it would be illegal for Abiljo to exclude or attempt to exclude its liability; or
12.3.4 for fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3:
12.4.1 Abiljo's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
12.4.2 Abiljo shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13 CONFIDENTIAL INFORMATION
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, designs, drawings, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Abiljo, its employees, agents, consultants or subcontractors and any other confidential information concerning Abiljo’s business or its products which the Customer may obtain.
14.1 Abiljo may assign the Contract or any part of it to any person, firm or company.
14.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Abiljo.
15.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
15.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
15.1.2 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
15.1.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
15.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or(being a natural person) is deemed either unable to pay its debts or as having not reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
15.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies of the solvent reconstruction of that other party; or
15.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
15.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
15.1.9 a person becomes entitled to appoint a receiver over the assets of the other party a receiver is appointed over the assets of the other party; or
15.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any party of its assets and such attachment or process is not discharged within 14 days; or
15.1.11 any event occurs or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that is equivalent or similar to the events listed in conditions 15.1.4 to 15.1.10 (inclusive); or
15.1.12 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
15.1.13 there is a change of control of the other party (as defined in section 1124 of the Corporation Tax Act 2010).
15.2 On termination of the Contract for any reason:
15.2.1 the Customer shall immediately pay to Abiljo all of Abiljo’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Abiljo may submit an invoice, which shall be payable immediately on receipt; and
15.2.2 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
16 FORCE MAJEURE
16.1 Abiljo reserves the right to defer the date of delivery or to cancel or suspend the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to:
16.1.1 circumstances beyond the reasonable control of Abiljo including, without limitation, acts of God, governmental actions or restriction, prohibition, enactment or regulation of any kind, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), trade disputes or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable good, materials and/or services (Force Majeure Event); or
16.1.2 non-delivery by Abiljo’s supplier or damage to or destruction of the whole or any part of the Goods.
17.1 Each right or remedy of Abiljo under the Contract is without prejudice to any other right or remedy of Abiljo whether under the Contract or not.
17.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.3 Failure or delay by Abiljo in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.4 Any waiver by Abiljo of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.6 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
18.1 All communications between the parties about the Contract shall be in writing, in English and delivered by hand or sent by pre-paid first class post, airmail requiring signature on delivery or sent by fax:
18.1.1 (in case of communications to Abiljo) to its registered office or such changed address as shall be notified to the Customer by Abiljo; or
18.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to Abiljo by the Customer.
18.2 Communications shall be deemed to have been received:
18.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
18.2.2 if delivered by hand, on the day of delivery; or
18.2.3 if sent by airmail, 9.00am on the fifth working day of posting; or
18.2.4 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
18.3 Communications addressed to Abiljo shall be marked for the attention of a director of Abiljo.
This is a place to describe your Return and Refund Policy to buyers.
A Return and Refund policy usually consists of: