Terms and Conditions
In these conditions Acante Solutions Ltd having its registered office at Basingstoke Road, Spencers Wood, Reading, Berkshire Purchaser is an individual or company with whom Acante contracts.
1) PURCHASER’S ORDER
The conditions shall prevail over any terms or conditions which the Purchaser may seek or have sought to impose. Any conditions in the Purchaser’s Order will be binding only so far as they are compatible with these Conditions and are expressly accepted by Acante in writing. The purchaser understands and agrees that future orders are subject to Acante’s current terms and conditions. Each order shall only be deemed to have been accepted by Acante if written notification has been given to the effect by an authorised representative of Acante to the Purchaser.
Clerical errors may be corrected by Acante at any time.
The prices quoted are Ex Works and exclude Value Added Tax. Any published list price shall be subject to revision without notice according to Acante prices ruling at the time of delivery.
4) SETTLEMENT TERMS
Punctual payment is the essence of the Contract and the Purchaser will pay interest at the rate of 2% above base rate per month or part thereof on any overdue payments. Provided that the Purchaser has produced references which in Acante’s opinion are satisfactory Settlement Terms will be net 30 days from delivery. In all other cases payment shall be in advance upon submission by Acante of a pro-forma invoice. In the case of non-standard kiosks, or permanent branding, 50% deposit will be charged when order is placed.
All times quoted for delivery are from receipt from the Purchaser of a written order to proceed. Unless otherwise agreed in writing any quoted delivery date shall be an estimate thereof and shall not be the essence of the Contract. Whilst all reasonable endeavours will be made to comply with estimated delivery dates Acante does not accept any liability in respect to failure or delay in delivery. Where a Purchaser’s Order calls for a number of items Acante reserves the right to deliver all or any as soon as they are available at Acante’s premises and the Purchaser shall honour all statements presented in respect of such deliveries in accordance with the Settlement Terms. Notification to the Purchaser by Acante that the goods are available for delivery to an independent carrier or to the Purchaser or his agent shall constitute delivery to the Purchaser. The method of packing, delivery and (if applicable) installation and fitting of the goods shall be at the sole discretion of Acante. In all cases the carrier acts as Agent of the Purchaser. If the Purchaser fails to give adequate delivery instructions then without prejudice to any right or remedy available to Acante. Acante may store the goods until actual delivery thereof and charge the Purchaser for all reasonable costs of storage (including insurance).
6) EXPORT CONTROL
If the goods or components thereof are licensed by the U.S. Government for ultimate destination with the United Kingdom or any E.E.C. country then the goods may not be re-exported without the approval of Acante in writing.
7) FORCE MAJEURE
Acante shall not be liable for failure or perform or delay in performance of any contract or for the loss or damage to goods indirectly caused by force mejeure to include acts of God, fire, theft, riot, war, embargo, strike of labour, delays in delivery or material by suppliers, prohibition of export or import, confiscation of any other occurrences (whether or not of a similar nature to those specified) beyond the control of Acante. No consequences of any such event shall give rise to the recession of the Contract unless in the opinion of Acante the contract becomes incapable of performance.
8) INSPECTION AND ACCEPTANCE
Upon acceptance of the goods the Purchaser shall be deemed to acknowledge that the goods so accepted conform in all respects with the specification of the goods ordered. If the Purchaser desires to inspect the goods prior to delivery such inspection must be made at Acante’s premises and notification of this requirement must be given in writing at the time of placing the order. If upon inspection the goods are approved by or on behalf of the Purchaser such approval shall constitute acceptance of the goods. If no such inspection is made the Purchaser shall be deemed to have accepted the goods when they are delivered to him or his agent or carrier unless the Purchaser gives written notice to the contrary to Acante within five working days of delivery.
9) PASSING OF PROPERTY
The goods shall remain the sole and absolute property of Acante as legal and equitable owner until such times as the Purchaser shall have paid to Acante the full price for the goods and (if applicable) services by way of cash or cleared funds. From delivery of the goods the Purchaser acknowledges that he is in possession of the goods solely as bailee for Acante and shall as bailee insure and keep the same insured in the name of Acante in their full reinstatement value in some reputable purpose of recovering its goods Acante may enter any premises where the goods are stored or where they are reasonably thought to be stored and may repossess the same. Until such time as the Purchaser becomes the owner of the goods he will store them on his premises in a manner which makes them readily identifiable as the goods of Acante.
The Purchaser is licensed by Acante to agree to sell Acante’s goods subject to the express conditions that 80% of the proceeds thereof are held in trust for Acante and are not mingled with other monies or paid into any overdrawn bank account and shall be at any times identifiable as Acante monies. The Purchaser is licensed to use the goods in the manufacture of other goods provided that if the goods being the property of Acante are mixed with goods being the property of the Purchaser or are processed with or incorporated therein the product shall be deemed to be the sole and exclusive property of Acante.
If the goods being the property of Acante are mixed with goods being the property of any other person other than the Purchaser or incorporated therein the product thereof shall become or shall be deemed to be owned in common with that other person in proportion to the value of the constituent parts therein. The Purchaser is licensed by Acante to agree to sell on the said product subject to the express condition herein before mentioned in relation to the proceeds of sale thereof.
All drawings specifications and particulars of the goods submitted are approximate only. The description and illustrations contained in catalogues, price lists and other advertising of Acante are intended merely to present a general idea of the goods described therein and shall not form part of the Contract. Whilst every effort is made to ensure that the latest specification is available, Acante reserves the right to incorporate new features and to supply products which may not be strictly in accordance with the specification agreed upon, provided that any changes in specification shall not materially prejudice the performance of the goods.
11) CANCELLATION OF ORDERS
If at any time the Purchaser cancels an order for goods or services Acante shall be entitled to claim as damages an amount equal to 75% of the value of the order. If a written cancellation has been received by Acante more than 45 days prior to the acknowledged delivery date these damages shall be limited to 50% of the value of the order. If written cancellation has been received by Acante more than 120 days prior to the acknowledged delivery date these damages shall be limited to 10% of the value of the order. These amounts the Purchaser agrees represent a genuine pre-estimate of Acante’s loss. Upon the cancellation of any order Acante shall have the right to release at its discretion after 60 days all monies, securities or goods pledged with or held by it on behalf of the Purchaser and to apply the proceeds in or towards the satisfaction of such claim for damages and the Purchaser shall have no claim whatsoever against Acante in connection therewith.
a) Acante warrants that the goods will be of good quality and that Acante has title to sell the same. Acante’s warranty of workmanship (if provided) shall be effective from the date on which the goods where accepted in accordance with Clause 8 and limited to 90 days from despatch or such period as may be notified in writing by Acante to the Purchaser upon acceptance of the Purchaser’s order (the warranty period). During the warranty period Acante will replace, free of charge, any part or parts of the goods which fail to function as a result of faults caused during their manufacture provided always that such faulty goods are returned carriage paid to Acante’s premises. The goods when repaired or replaced by Acante will then be returned carriage paid to the Purchaser. Acante shall not be liable under this warranty.
i) where the defect results from the goods being subject to abnormal usage or where the defect is due to the act, neglect or default of anyone other than Acante.
ii) for the replacement or repair of the goods or part thereof where such replacement or repair becomes impossible as a result of force mejeure or any other circumstances beyond Acante’s control.
iii) where the goods or any component parts thereof are the subject of a separate guarantee given by a Third Party.
b) Subject as expressly provided in these Terms and Conditions and except where the goods are sold or services provided to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions and other terms implied by statute or Common Law are hereby excluded to the fullest extent permitted by law.
c) Save in respect of death or personal injury caused by Acante’s negligence and within the constraints of the Consumer Protection Act 1987. Acante shall not be liable to the Purchaser by reason or any representation or any implied warranty condition or other terms or any duty at Common Law under the express terms of the Contract for any consequential compensation whatsoever (and whether caused by the negligence of Acante’s employees or other agents) which arise out of or in connection with the supply of the goods or their resale by the Purchaser or their performance of the services except as expressly provided in these Terms and Conditions.
d) The Purchaser hereby expressly agrees and acknowledges that the limitations of the liability of Acante contained within this Clause are reasonable taking into account all relevant circumstances such as the relative bargaining positions of the parties hereto.
13) LEGAL CONSTRUCTION
Except where otherwise stipulated in writing the relations, arrangements and agreements between the parties shall be governed by the laws of England and all disputes which may arise under out of or in connection with any contract between Acante and the Purchaser shall be submitted to arbitration by the London Court of Arbitration in accordance with its Rules for the time being in force. Service of any notices in the course of such arbitration to the address of the Purchaser given in the Contract shall be valid and sufficient.
All references in the Terms and Conditions to the masculine gender shall deemed to include the feminine and neuter genders. Failure or neglect by Acante to enforce at any time any of the provisions hereof shall not be construed a waiver of Acante’s right nor in any affect the validity of the whole or part of this Contract nor prejudice Acante’s rights to take subsequent action.
The headings of the terms and conditions are inserted for convenience or reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Contract. In the event that any of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable it shall be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
No agent of either party has authority to make oral representations prior to or after placing an order and the Purchaser has not relied upon any oral representations in placing an order nor has any agent or either party authority to vary or modify the Terms and Conditions herein which may only be varied or modified in writing by Acante.
15) STERLING PROTECTION
Any quoted or listed sterling prices are subject to variation in the rate of exchange between sterling and the currency paid by Acante for whole or major components between the date of the Contract and the time of submission of Acante’s invoice to the Purchaser. Acante reserves the right to vary the prices so that it accords with the said rate of exchange prevailing at the time of Acante’s invoice.
If the Purchaser shall default in the performance of any of its obligations under the Contract, Acante shall on giving the Purchaser notice in writing have the right without prejudice to any other rights or remedies to take all or any of the following actions:-
a) cancel all or part of any discount which might otherwise have been due under the terms of the Contract
b) suspend any outstanding delivery of goods or part thereof until such default shall have been good
c) recover possession of that part of the goods to which the default relates and the Purchaser shall allow Acante free access to his premises to enable Acante to do so. No waiver or delay in exercise by Acante of its right under this clause shall be deemed to imply acceptance of the default or any subsequent default.
If the Purchaser shall become bankrupt, go into liquidation, have a Receiving Order made against him, or carry on his business under a Receiver Acante shall have liberty without prejudice to any further remedies under the Contract to terminate the Contract forthwith by notice in writing to the Purchaser or Liquidation and recover possession of all equipment for which full payment of the Contract price has not been received as in c) above.